Bydon v General Manager, Motor Vehicle Repair Industry Authority
[2003] NSWADT 248
•11/20/2003
CITATION: Bydon v General Manager, Motor Vehicle Repair Industry Authority [2003] NSWADT 248 DIVISION: General Division PARTIES: APPLICANT
Niel Bydon
RESPONDENT
General Manager, Motor Vehicle Repair Industry AuthorityFILE NUMBER: 033129 HEARING DATES: 13/08/03 SUBMISSIONS CLOSED: 08/13/2003 DATE OF DECISION:
11/20/2003BEFORE: Montgomery S - Judicial Member APPLICATION: Motor Vehicle Repair Act - Motor Vehicle repair grant of licence - Motor Vehicle repair -grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Motor Vehicle Repairs Act 1980CASES CITED: REPRESENTATION: APPLICANT
C Whitelaw, barrister
RESPONDENT
B Charmers, legal officerORDERS: 1 The deemed decision by the General Manager is affirmed
1 This is an application for review of a deemed decision by the General Manager, (“the General Manager”) Motor Vehicle Repair Industry Authority (“the Authority”) to refuse an application by Mr. Niel Bydon for a licence under the Motor Vehicle Repair Act 1980 (“the Act”). Mr. Bydon sought a licence to enable him to carry on the business of a mobile rust repairer.
Background
2 The Authority received Mr. Bydon’s application on 2 February 2003. The Authority declined to grant the licence that Mr. Bydon sought, on the basis that it did not comply with the provisions of the Act. On 7 February 2003 the Authority informed Mr. Bydon of the policy relating to mobile rust repairers.
3 On 12 February 2003 Mr. Bydon was granted a provisional tradesperson certificate, which restricts him "to carry out rust repairs which do not affect the structural integrity of the vehicle".
4 On 24 February 2003 Mr. Alan Higginbotham made representations to the Authority on Mr. Bydon's behalf. Mr. Higginbotham is currently Head Teacher Panelbeating Painting Mount Druitt TAFE College and has a considerable experience in the Panelbeating field. Mr. Higginbotham informed the Authority of Mr. Bydon’s experience in the industry, confirmed the extent of the repairs that Mr. Bydon proposed to conduct and asked the Authority to further consider the matter.
5 Mr. Bydon wrote to the General Manager on 20 March 2003 and sought an explanation for the foreshadowed rejection of his application. On 28 March 2003 the General Manager advised Mr. Bydon of the Authority’s requirements for the grant of a licence, safety and trade standard issues, the requirement not to contravene any other Act, and the policy regarding mobile rust repairs. The General Manager provided Mr. Bydon with a copy of the Authority's policy regarding mobile rust repairers. Mr. Bydon was given an opportunity to amend his application.
6 Mr. Bydon again wrote to the General Manager on 4 April 2003 and he advised that he did not propose to weld panels or fix any rust affecting the strength of a vehicle. He also advised that 80% of the repairs that he proposed to carry out would be done at service stations to assist clients to get pink slips for registration of their vehicles.
7 The Authority’s Manager Technical Services, Mr. Ken Buscombe, met with Mr. Bydon in relation to his licence application on 28 April 2003. Following that meeting, Mr. Buscombe recommended to the General Manager that Mr. Bydon’s application be refused because:
- “No information has been provide to satisfy that the business can be carried on without contravening any other Act
Nothing has been provided to alleviate the majority of concerns of MVRIA as outlined in MVRIA Policy
It appears Bydon has done no work since March 2002, application for RL not lodged until 4/2/03 so business could not be considered to be a substantial business.
Mr. Bydon indicated he does not intend to change the nature of his application (ie to static workshop, due to stated financial restraints)
Mr. Bydon’s statements are contradictory in that in his letter dated 4th April 2003 says he is not involved in any welding of panels yet his statement to me on 28th April 2003 he stated he does do welding of panels.
Mr. Bydon stated he has withheld information regarding claimed local Council approval, one would have to therefore questions his motives for such action and therefore raising a question as to the veracity of other statements.”
8 By letter dated 5 May 2003 the General Manager informed Mr. Bydon that there was no basis for granting the application and that the application was deemed to be refused pursuant to section 34 of the Act.
9 Mr. Bydon has sought a review of that deemed refusal. Mr. Whitelaw, on behalf of Mr. Bydon urged the Tribunal to make orders in the following terms:
- “i. That the decision and deemed refusal be set aside;
ii. That a panelbeater's repair licence be granted to the Applicant to conduct a mobile rust repairers business with suitable conditions attached to it;
iii. That the suitable conditions attached to the licence be those recommended or suggested by Mr. A. Higginbotham in his expert report prepared and filed on behalf of the Applicant.”
10 The reviewable decision is the deemed decision to refuse Mr. Bydon ’s licence application. On 19 May 2003 Mr. Bydon applied to this Tribunal for review of the Commissioner's decision. The matter was listed before me on 24 June 2003 at which time I made directions for the filing of documents. The matter was listed for hearing on 13 August 2003 and it proceeded on that day.
Applicable legislation
11 Motor vehicle repairers’ licences are issued pursuant to Division 1 of Part 3 of the Act. Section 15 of the Act provides that a person must not carry on or advertise that they are willing to carry on the business of a repairer unless they are the holder of a relevant licence. Section 16 of the Act provides that an application for a licence may be made to the Authority must specify, amongst other things, the class or classes of repair work in respect of which the application is made and the address of any place or places of business at which the applicant intends to carry on business. If required to do so by the Authority, an applicant for a licence must also provide the Authority with any additional particulars, and any additional documents in relation to those particulars, that the Authority requires. Section 17A of the Act provides that the Authority may make such inquiries as it considers necessary in relation to an application for a licence. The Authority must grant an application for a licence, except in the circumstances set out in section 18 of the Act.
12 Insofar as is relevant to an application for a licence by an individual, section 18 of the Act provides:
- “18 Refusal of application for licence
(1) The Authority must refuse an application made by an individual (whether in his or her own right or as part of a joint application) if it appears to the Authority that:
- (a) the applicant has not attained the age of 18 years, or
(b) the applicant is disqualified from holding a licence, or
(c) the applicant is an undischarged bankrupt, or
(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, or
(e) the applicant is not a person likely to carry on such a business honestly and fairly, or
(f) the applicant does not have the qualifications (if any) prescribed by the regulations, or
(g) the applicant does not have the material resources and other resources (if any) prescribed by the regulations, or
(h) the application does not comply with section 16 or the applicant has not complied with a requirement made under section 16 (6), or
(i) the applicant is in any other way not a fit and proper person to hold a licence, or
(j) 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 section 154AA of the Crimes Act 1900 ), or
(ii) receiving, or unlawful possession of, a motor vehicle (within the meaning of section 154AA of the Crimes Act 1900 ) or a motor vehicle part.
- (a) whether the applicant has, during the period of 10 years that last preceded the making of the application, been convicted of, or served any part of a term of imprisonment for, an offence in New South Wales or elsewhere involving fraud or dishonesty,
(b) whether the applicant was, when the application was made, subject to a good behaviour bond in relation to such an offence,
(c) whether there was, when the application was made, a charge pending against the applicant in relation to such an offence,
(d) whether the applicant has, at any other time, been convicted of an offence against this Act or the regulations or any other Act or regulation administered by the Minister.
- (a) some other licence is in force in respect of a place of business, or any part of that place, to which the application relates, or
(b) the carrying on of the business at any such place, or part of a place, is, for any reason, unlawful.
(8) The Authority may require any of the following persons to appear personally before the Authority to satisfy the Authority as to any relevant matters under this section that the Authority may require:
- (a) any individual to whom the application relates,
(b) the directors and officers of the body corporate to which the application relates.
13 A deemed refusal of a licence application is pursuant to section 34(4) of the Act, which provides:
- “ 34 Notice of refusal
(4) For the purposes of this Act, the Authority shall be deemed to have refused to grant a licence or certificate or to grant an application for the amendment or transfer of a licence if it does not give a decision on an application:
- (a) duly made with respect to that grant, and
(b) accompanied by the fee (if any) appropriate to that application,
14 Mr. Bydon’s right to review of the Authority’s decision is pursuant to section 45 of the Act. That section provides:
- “45 Reviews by Administrative Decisions Tribunal
(1) If the Authority:
- (a) refuses to grant an application for, or suspends or cancels, a licence or certificate, or
(b) refuses to grant an application for the amendment of a licence, or
(c) imposes or varies a condition or restriction on a licence or certificate, or
(d) makes a requirement under section 44 (1) (b), or
(e) imposes a disqualification referred to in section 44 (1) (d),
(2) On an application for a review of a decision of the Authority to refuse to grant a licence to a person because of a fact referred to in section 18 (3) or (5), the Administrative Decisions Tribunal may determine that the fact should be ignored on one or more of the following grounds:
- (a) the triviality of the acts or omissions giving rise to the offence concerned,
(b) the time that has passed since the offence concerned was committed,
(c) the subsequent good behaviour of the offender,
(d) any other ground prescribed by the regulations.”
15 Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:
- “63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
- (a) any relevant factual material,
(b) any applicable written or unwritten law.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
- (a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
16 Section 64 of the ADT Act provides that the Tribunal may have regard to any policy applied by the administrator in relation to the matter before it. Section 64 provides:
- “64 Application of Government policy
(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.
(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.
(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.
(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.
(5) In this section:
Government policy means a policy adopted by:
- (a) the Cabinet, or
(b) the Premier or any other Minister,
17 Mr. Bydon filed a document in which he set out the reasons for his application. That document provides a reasonable outline of his case and states:
- “I have applied for a mobile repairers licence to carry out minor rust and small body repairs. I am a licensed tradesman with the skill to carry out these repairs. The MVRIA has rejected my application stating that there are three areas of concern ... The three areas of concern are:
(1) Quality of repairs.
My registered business name is Rust Removal and I have been doing these types of mobile repairs for approximately three years. I was not aware that a licence was required for this type of work. When I was informed that a licence was required I ceased this type of work and applied for a licence. Over three years I have mainly been doing small repairs for service stations and car yards. My standard of work is very high as this is a very competitive market and I rely on client satisfaction for continued work. Also I have never had any complaints about the quality of repairs. In fact, I consider that if the quality were not satisfactory, customers would have lodged a complaint with the MVRIA. My three year unblemished record of repairs stands proof of the quality of my repairs, also I can supply names of clients who will supply information about the high standard of my workmanship. The types of rust repairs that I perform do not include structural rust repairs. As I am experienced in this area, I refer the client with this type of repair to a panel-beating workshop that will have the correct equipment to complete these types of repairs. I also do small dent repairs.
(2) Public Safety.
This is of prime concern to me and I am aware of OH & S regulations in regards to my safe working habits and public safety. The types of repairs I perform include a small amount of oxyacetylene welding of panel. This work also involves sanding of panels and the use of polyester fillers. I always work in an area where the public are not endangered. In fact, I will not work in an area if I consider there are hazards to the public or myself. Also I do not consider that there is any greater risk to the public then there is in the work carried out by mobile mechanics, mobile spray painters, or mobile dent repairers who are all licensed by MVRIA. Clearly looking in the yellow pages, anyone can see there are many mobile repair businesses around. It appears that the policy discriminates against mobile small dent and rust repairers.
(3) Pollution.
I do not consider that the pollution generated by the types of work I do is any greater than the licensed spray painters, dent repairers, or mobile mechanics. In fact, the work area is cleaned by myself after I complete a job and there is no risk of stormwater pollution, as I vacuum the area concerned. In the letter from Danielle Robinson dated 7/2/2003, the policy was introduced in consultation with local councils. It appears to me that councils allow more pollution to occur with the spray painting of roofs on houses.
Types of Pollution from:
1) Mobile Mechanics - dust and dirt from brakes, also oil spills, the dislodgment of accumulated dirt and grease when working on a motor vehicle.
2) Mobile spray painters - sanding of paint and polyester fillers, also air borne pollution from spray paint.
3) Mobile small dent repairers - sanding of paint may be required when doing paint less dent removal. Also the cleaning of the underside of the panel being repaired which may result in dirt or grease being dislodged.
In summing up, I would like you to consider that I have been doing this type of work for three years with no complaints. If the MVRIA has licensed mobile mechanics, mobile spray painters and mobile small dent repairers, clearly I fit into the same category and I consider that I should be granted a licence.”
18 Mr. Bydon also gave oral evidence and was subjected to cross-examination. His evidence in chief was consistent with the statement set out above. He said that he has worked in the panel beating industry since 1976. He also stated that prior to his application for this licence, he had not been aware that a licence was required for the type of work that he performed. He said that he had asked the Department of Fair Trading if he needed a licence and was advised that he did not. He also said that he called the Penrith Council and gave details of what he wanted to do. He was advised that if the work that he would be performing was not carried out in the street, the council would not be concerned.
19 Mr. Bydon also put in evidence a list of equipment that is available to him for use in his business. Photographs showing several of the items supported this list. He stated that he agreed that he could take greater efforts when sanding or painting to restrict the escape of dust particles. He also stated that if the licence is granted he would agree to any conditions that the Authority proposed. He would agree to monitoring by the authority, advise the Authority of jobs that he was undertaking and allow officers of the Authority to observe his work and check whether he was complying with any conditions.
20 Under cross-examination Mr. Bydon conceded that some rust problems that appear to be surface rust in fact are more serious and require structural work. He said that he has a limit of 100mm sections. If more than 100 mm needs to be cut out then the whole panel would need to be replaced. The work that he performs can be carried out with small tools. He uses a sheet to reduce any risk from materials that fly off. He has protective clothing, goggles and masks for when he undertakes sending or grinding or oxy-welding. He said that sometimes he has access to a garage if more space is required then he would otherwise have. However, as he only performs small jobs, this is not essential. He stated that the Authority's concerns about pollution and toxic materials being released during sanding were unfounded because of the small amounts of chemicals that he would be using and the fact that he uses a shield to prevent pollution on entering stormwater drains.
21 Mr. Bydon also put in evidence a CD containing information provided by K & H Surface Technologies Pty Ltd - the supplier of in the fibreglass repair and laminating resin and catalyst that Mr. Bydon uses in his business. Included on this CD are health hazard details and safe handling information.
22 Mr. Higginbotham also gave evidence in support of Mr. Bydon's application. Mr. Higginbotham prepared two reports in response to a series of questions posed by Mr. Whitelaw. Those reports provide a good summary of his evidence. That first of those reports provides:
- “ 2. Please set forth your understanding of the kind of business the applicant wishes to conduct if he is granted a repairer's licence and his present material resources to carry on that business .
The business the applicant is involved in is mobile rust repairs. It is my understanding when talking to him that he has sufficient tools and materials to complete rust repairs. It appears that he has been doing these types of repairs for 3 years with no complaints from customers.
3. The MVRIA has published a policy on mobile rust repairs that states that a repairers licence should not be granted to a person who wishes to carry on such a business. The Applicant’s application for such a licence was refused on the grounds stated in the policy (quality/safety/pollution). Is there any substance or merit in any of these three policy grounds in the circumstances of the applicant's proposed mobile rust repair business and if there is in your opinion can suitable conditions be attached to his licence that would adequately meet the concerns expressed in the policy?
Quality of repairs would depend on the person’s skill level and the equipment that he uses. It is my understanding that he has been granted a license by the MVRIA to do rust repairs, but not on a mobile basis.
SAFETY:- There would have to be conditions established to ensure his safety and the safety of the public was not at risk. I would suggest a suitable no-go zone around the work area eg. Mobile 1.6 metre high welding shields made from tube and plastic, the type that is used in industry when welding or grinding takes place. Two or three of the shields could be placed around the area being worked on. Also a suitable fire extinguisher and material safety data sheets for materials he is using. Also he would need a first aide kit complying with Work Cover requirements. I consider that this type of work should not be done in the street it should be done wherever possible in the backyard of the premises. I have been informed by the applicant that most of his work is being done at service stations where the mechanics work. He would also need methods of disposal of any dust that is created. A dust extraction system on tools would solve this problem-
POLLUTION:- This type of work will generate pollution in the form of dust from the sanding of paint and the sanding of polyester fillers. Dust extraction systems on tools would solve most of the problems also a vacuum cleaner should be used to clean the area when the work is completed. This would be a similar problem for the mobile spray painters.
4. Are you aware of any other repair business being conducted in the community that can be compared with or that have similarities to the applicant's desired business activity and which are being licensed by MVRIA? What are they?
I am aware that there are mobile spray painters and the type of work they do would involve sanding of paint and polyester fillers. Also they have an air compressor to do paint touch ups. There are also paintless dent repairers and this process may require some sanding of paint.
Mobile Mechanics and Automotive Electricians are also doing work at private premises. The equipment list for mechanic includes oxy-acetylene welding plant.
5. Can you identify or isolate any special features inherent in the business activity that distinguish it from these other types of business when considering the areas of concern stated in the MVRIA policy?
The only area that the activity is different is the types of tools required are different eg. A 100mm grinder would be required and the welding equipment could be oxy-acetylene or electric.
6 If there are special risk factors, can they be suitably catered for by way of MVRIA attaching certain conditions to a mobile rust repairers licence? If so, what conditions?
Conditions and risk factors these have been covered in the lists for mobile mechanics and mobile spray painters. Although as stated earlier suitable welding shields and vacuum equipment should be used And the appropriate personal protective equipment be used eg. Cotton overalls and grinding goggles and suitable dust mask.
7. What material resources would the Applicant need to conduct his mobile rust repair business in a manner that would not offend any of the areas of concern noted on the MVRIA policy and which would comply with the special licence condition you have mentioned above?
The material resources that would be required that would not offend the areas of concern are suitable welding curtains placed around the motor vehicle with appropriate "KEEP OUT" signs and dust extraction on tools plus a vacuum cleaner.
8. From your knowledge of 'the Applicant's present circumstances, would he be able to comply with such conditions if they were attached to his licence?
I am not aware of the Applicants financial circumstances although the cost to comply with the conditions that I have suggested would not be excessive.”
23 Mr. Higginbotham's supplementary report is in response to a report prepared by Mr. Buscombe. That report is also in the form of answers to questions posed by Mr. Whitelaw. Mr. Whitelaw’s questions and Mr. Higginbotham's answers are as follows:
- [W]hat you and Neil must turn your attention to … is as follows -
1. You must decide whether Neil wants a repair licence that will allow him to do JUST spot SURFACE RUST repairs or whether he wants to be able to do rust repairs to STRUCTURAL parts of cars. His prior communications to MVRIA appear to be equivocal on this matter.
Minor rust repairs to car skin panels using oxy-acet welding eg doors, guards.
2. Does Neil intend to do WELDING work or will he confine himself to doing surface rust repair not requiring any welding equipment or processes? It would appear that the use of welding equipment will make success of his application more difficult due to safety and environmental concerns.
No comment offered.
3. If he is going to do sanding and grinding - how is he going to overcome the concerns and reservations expressed by Mr. Buscombe at paragraphs 16 - 17 of his statement?
4. How will we show that the use of a MOBILE SHIELD at a service station workshop will not be impractical as suggested by Mr. Buscombe?
The rust repairs done at a service station could be done if necessary at the back of the service station with a no-go zone and mobile shields could be used to make the area safe for the public. This would be no different than working in a private premises.
5. How will you address the concern raised by Mr. Buscombe about the use of body filling which can compromise the safety of the vehicle (para 14)?
Body filler will only be used after the welding of panels is complete.
6. How will you respond to the pollution issue raised by Mr. Buscombe in paragraphs 24-26 and his view that any dust extractor used by Neil would not stop debris being lost to the surrounding area and becoming airborne pollutants?
Only a small amount of body filler would be used if the welding of panels is done correctly. Dust extraction on tools does not solve all of the pollution but it helps. Niel has stated that 90% of his body filler work is hand sanded. Also the area will be vacuumed after work is complete. Note:- These repairs are only small rust repairs generally not more than an area of 100 x 200 mm.
7. If he had access to 15 amp power - how would Neil address the safety concerns raised by Mr. Buscombe at para 26?
The dust extraction equipment is 10 amp such as the latest Festool dust extraction equipment. Most service stations are equipped with plenty of 10 amp power points. An extension lead would be used and positioned so that it does not interfere with the public.
8. How will you deal with Mr. Buscombe's points made at paragraphs 27 to 30?
In point No. 27 Mr. Buscombe states:- hand sanding is done. Panels cannot be painted unless they are sanded. If they were not sanded poor adhesion of the paint would be the result. Body filler would also have to be used if the bumper bars were damaged from parking accidents. Most bumper bars have damage if the car is a few years old. If the plastic is gouged or deeply scratched, filler would be required if the repair is to be done correctly. Also, when painting these bumper bars I assume that the paint pollutes the air.
28. Paintless dent repairers repair small dents by using levers and small body spoons. These types of repairs can be done without sanding of paint in most cases, although when a difficult repair is done it may require a light sanding of the paint with a fine abrasive paper followed by the use of a paint cutting compound. If this is not done to some of the difficult repairs your eye will pick up minor imperfections in the panel.
29.Oxy-acetylene equipment is used for heating and welding. I agree that it is used for mechanical components, although there may be occasions when a motor mechanic would weld a cracked exhaust pipe on a motor vehicle. Most mobile mechanics are proficient at welding procedures. Welding is welding.
9. You will need to make up a COMPLETE INVENTORY of all EQUIPMENT Neil will need to do his intended mobile rust repairs. Please prepare a full list to hand up to the Tribunal.
No comment offered.
10. You will need to provide PROOF that Neil has this equipment on the list or the capacity to purchase/rent it within his financial means.
No comment offered.
11. You should bring with you PICTURES of each item of equipment on the ESSENTIAL EQUIPMENT LIST to show that Neil has the means to properly and safely carry out his intended business.
No comment offered in report but these were provided at the hearing.
12. In the light of Mr. Buscombe's statement and the issues he raises please reconsider the issue of what conditions/restrictions Neil would agree to have attached to a rust repair license to accommodate the chief concerns raised by MVRIA.
No comment offered.
13. Is there any way that a PROVISIONAL LICENCE could be issued to Neil with the ability of MVRIA to conduct inspections and quality control checks on him from time to time to ensure that he is able to abide by the conditions/restrictions attached to his licence? This is important as otherwise general PUBLIC SAFETY CONCERNS/INTERESTS may prevail in support of upholding the MVRIA Policy against granting mobile rust repair licences over Neil's private interest to get such a licence and generate an income from it.
The MVRIA could monitor safety and quality of Niel’s repairs to ensure all conditions were met. Do they do this to mobile spray painters?
Mr. Bydon would be willing to undergo a test at Sydney College of TAFE to establish that he is capable of quality repairs. Sydney run tests for panelbeaters that come from overseas then a qualification is issued if they meet the standard.
24 In his evidence before the Tribunal Mr. Higginbotham stated that he considers that Mr. Bydon has sufficient tools to carry out the work that he proposes to do. Mr. Higginbotham said that in his opinion the work that Mr. Bydon proposes to do does not involve structural work. He said that he could not see any problem in Mr. Bydon doing skin panel work. He did not believe that within the industry the work that Mr. Bydon proposes would be considered as affecting the structural integrity of vehicles. He did not consider that removing panels affects the vehicle’s structural integrity.
25 Mr. Higginbotham said that the person who was inspecting the vehicle for purposes of issuing a pink slip would assess the quality of the work that Mr. Bydon would be performing. The work would have to be done to the satisfaction of the authorised inspector. He said that no work should be done on a street. If it was done at a service station it should be done at the back, near a concrete wall, using a shield. He also compared the work that Mr. Bydon proposes with that of a mobile spray painter. He said that they would be using similar materials with the exception that the painter would not be welding. Similar issues apply in regard to mechanics that do in fact use welding equipment. He said that in his opinion there is more risk associating with the work of a mobile mechanic than with the work that Mr. Bydon would be performing.
26 Under cross-examination Mr. Higginbotham conceded that there was a discrepancy between the information that he had provided to the Authority on Mr. Bydon’s the half, in which he had stated that there would be no welding, and the evidence given at the hearing. Mr. Higginbotham stated that this was due to communication problems between Mr. Bydon and himself. This issue has now been clarified.
27 Mr. Higginbotham agreed that there were different considerations because of the nature of the particular activities proposed compared to those for other licensees. However, he said that he thought that the Authority’s policy could be varied to suit the particular type of work. He agreed that environmental issues would need to be considered.
The Authority’s case
28 Ms Charmers appeared on behalf of the Authority. She prepared written submissions that provide a good outline of the Authority’s case. Mr. Buscombe appeared and gave oral evidence and was subjected to cross-examination. Mr. Buscombe’s report dated 8 August 2003 was put in evidence. It is in response to this report that Mr. Higginbotham provided comments in his supplementary report. Mr. Buscombe’s report states:
- “1. In response to Point 2, of the statement of Mr. A Higginbotham.
I interviewed with Mr. A Higginbotham on the 9th April 2003 wherein he stated that:
A. He did not know Mr. Bydon prior to him seeking assistance with his application for a repairers license and trades person certificate from the MVRIA.
B. He had not observed Mr. Bydon carry out the type of work for which he was seeking to be licensed.
C. He had no knowledge of locations at which he carried out this type of work.
D. To his knowledge Mr. Bydon carried out the repairs in question by the application of body filler to the area to be repaired.
2. I am of the opinion that Mr. Higginbotham is not in a position comment in an informed way as to the quality, procedures or methods used by Mr. Bydon to carry out the repairs.
3. In a letter to the General Manager, MVRIA dated 24th February 2003 Mr. Higginbotham stated that Mr. Bydon had informed him that he has not had any complaints about his work in the three years he has reportedly been carrying out such repairs.
4. This statement seems to be offered to suggest this to be a reason why the repairer's licence should be granted. I would argue the contrary, that it does not satisfy any test of quality of repairs nor any test for the issue of a licence. Rather it is simply an indication of breaches of the Motor Vehicle Repairs Act 1980 by Mr. Bydon.
5. Mr. Higginbotham states he understands Mr. Bydon to have sufficient tools and materials to carry out the repairs. This stated understanding does not refer to the equipment requirements of the MVRIA to perform work of this class. The MVRIA with the assistance of Equipment Advisory Committee established minimum equipment requirements for the various repair categories. The purpose of this minimum equipment list was to help ensure that repairs are done in safe and trade acceptable manner.
6. I attach a copy of the equipment list required for the Panelbeater class of licence.
7. I refer to Point 3, of the statement of Mr. A Higginbotham. In relation to "Mobile Rust Repairs" the policy (copy attached) established by the Authority clearly outlines the reasons for not granting a licence for this area of work that is;
8. Quality: In addition to the items outlined in the Policy, the method of repairing by the application of body filler is of concern to the Authority as this "diminishes" the structural integrity of the panel.
The difficulty created by this type of repair is the difficulty in detection by a subsequent purchaser. This results in general safety concerns by the Authority.
9. I refer to the function of the Authority, Part 2, 2 (d) of the Act:
"to keep under review, and promote improvement in the standard of, motor vehicle repair work,".
10. In his letter of 4th April 2003 Mr. Bydon states that 80% of his work is done at service stations where clients (owners) are unable to obtain a pink slip (re-registration certificate.) He also states that his work does not involve "welding" and is usually "surface rust."
11 This is a contradictory statement as surface rust is not a reason for rejection for re-registration and would not require rust repair for this reason.
See "Rules for Authorised Inspection Stations",(copy attached) Rule 105, 105.04, `Reasons for Rejection"
12. Also see "Appendix A1 ", (copy attached) Classification of Rust and Classification of Vehicle Structures.
13. Therefore it can only be concluded that rust is to an extent that repair is required and that repair is going to be effected by the applicant by the use of body filler (resinous filler).
14. I refer to heading "Repairs" in appendix 1 paragraph two (2) which states,
It should be noted that repairs made to primary structure components solely by using body filling compounds are not acceptable.
15. The safety of the vehicle will then be compromised, this is not an acceptable practice.
16. An additional aspect of quality relates to Mr. Bydon letter of 4th April 2003 in which he states that 80% of the work is done at service stations. Service station workshops primarily conduct mechanical repairs which require the dismantling of complex mechanical components (engines, transmissions etc and associated systems) It is likely that the performance of rust repairs with the associated sanding and grinding could provide the opportunity for the ingress of particles into the mechanical components thus creating a defect with the operation of those mechanical components.
17. This would cause a financial burden to both the vehicle owner and service station operator in correcting this defect. It could also cause greater problems if undetected for a lengthy period.
18. Reference is made to the Authority having granted Mr. Bydon a licence." This is incorrect Mr. Bydon has been granted a "Provisional Tradesperson Certificate" which is a personal qualification issued to an individual and does not sanction the conduct of a repair business, for which a licence is required.
19. Safety:
The safety concerns of the Authority are outlined in the Policy. Point 3 seems to now suggest a hypothetical situation to address safety concerns which is not covered in the original application. Many aspects of Mr. Bydon's application are contradictory, particularly whether he intends to carry out welding as part of the repairs he undertakes.
The suggestion of a mobile shield seems impractical in a service station workshop due to space constraints as the majority of service stations comprise a two (2) bay workshop.
20. Pollution:
The pollution concerns of the Authority are outlined in the Policy.
Applying body filler gives rise to the likelihood of work being conducted on the forecourt (driveway) areas, which are open to public access. Therefore adequate exclusion from the work area would not be feasible.
21. Pollution is of such concern that many Local Councils, assisted with funding from the NSW Government, have instigated programs to raise awareness among the motor vehicle repair industry - as to their responsibilities in this area.
22. These Councils include, Hawkesbury Nepean Catchment Trust encompassing Hawkesbury City Council, Penrith City Council and Blue Mountains City Council, Marrickville Council, Botany Bay Council, Sutherland Shire Council.
23. The Authority has assisted these Councils in educating the industry to improve their practices related to recycling, collection and correct disposal of waste materials, treatment of waste water and the bunding of premises to prevent discharge of waste to the surrounding stormwater.
24. If rust repair work is done on a service station forecourt area, this work area is generally of a smooth concreted finish, This gives rise to debris created by the repair process being blown or washed into adjacent stormwater drains.
25. The suggestion that dust extraction on tools would solve the problem is rejected. It would not provide efficient extraction. High powered industrial suction systems would be required and such efficiency cannot be provided by individual sanding and grinding tools. The debris will be lost to the surrounding area and become airborne pollution before it is collected.
26. Further to this if sufficiently high powered equipment were proposed this would likely require the use of and access to 15amp power, this would create an additional safety concern with such leads lying around public areas.
27. I refer to Point 4: of the statement of Mr. A Higginbotham.
The reference to the work of mobile spray painters involving sanding of paint and fillers. This is not a problem for mobile painters as these repairers are restricted to minor chips and scratches which require minimum hand sanding or no sanding.
28. Paintless dent repairers are restricted to the repair of minor panel dents (hail and parking area type dents) which can be removed by working of the metal surface without disturbing the paint surface. Therefore no sanding is required and the comments by Mr. Higginbotham are irrelevant.
29. Motor Mechanics and Auto Electricians are licensed to operate as mobile repairers and work may be carried out at private homes. Oxy-Acetylene plant is a required item for Motor Mechanic. However the work conducted by these repairers bears no resemblance to that of the applicant, eg they carry out repairs to mechanical components not body panels. This statement by Mr. Higginbotham is irrelevant.
30. I refer to Point 5: of the statement of Mr. A Higginbotham. The relevance of reference to a 100mm grinder is unknown.”
29 The documents to which Mr. Buscombe’s report refers were also put in evidence. The Authority’s Policy - Mobile Rust Repairs is in the following terms:
- “The policy in respect to mobile rust repairs is that MVRIA will not grant such a repairers licence. This policy was established on the advice of a Panel Beater Advisory Committee that was established under the provisions of the Motor Vehicle Repairs Act, and after consultation with a number of Local Councils.
Three areas of concern were raised during deliberations over this matter, being quality of repair, safety and pollution.
Quality of Repair
To carry out such a repair to a proper trade standard rust should be removed and the repair effected by welding in place a metal panel. To speed up the work and to avoid creating visual pollution by removing guards, etc, some mobile repairers attempt to repair rust by working from the outside of the panel only. The heat of the MIG welder burns off any rust proofing remaining on the inside of the panel. Also for rust to occur the rust proofing has deteriorated in that area_ Panels often must be removed to gain access for applying rust proofing to the inside of the welded section otherwise the panel will rust again within a short period of time.
Applying rust proofing to a repaired section is the responsibility of the repairer. The alternative is for the repairer to shirk this responsibility and direct the owner to another business to have the car rust proofed. This requires the owner to pay hundreds of dollars more and is not an alternative acceptable to MVRIA.
- Safety
- MVRIA has a major concern for public safety.
The dust clouds formed by sanding toxic paint and body filler fills the air around an operator who is required under OH & S regulations to wear a filtered mask. However members of the public passing by or watching are afforded no such protection and breathe in the toxic dust.
The use of grinders and sanders on metal panels create large quantities of metal particles flying through the air for several metres. Initially these particles are red hot and create an affect similar to fire crackers. They are attractive to passers by, particularly children, to stop and watch. Once the particles cool down they become unnoticeable as they travel though the air. Particles from grinders and sanders are the major cause of eye injury in workshops among tradespeople familiar with the danger.
The industry standard method of replacing rusted panel sections is by welding using a MIG welder. This is a form of electric welding, which produces ultraviolet rays damaging to the eyes. Operators must wear protective glasses or blindness will result. Again, no such protection is provided to passers by.
Pollution
The area of major concern to Local Councils centred on noise, visual and stormwater pollution.
Noise & Visual Pollution
Performing rust repairs involves the use of grinding and sanding equipment and hand forming of panel replacement sections using hammers and dollies. All of these activities are extremely noisy and rust repairs may take several days to complete. These activities are so annoying that MVRIA regularly receives complaints from neighbours about car owners performing their own repairs in their backyards. Such activity by a car owner repairing his or her own car is outside the jurisdiction of the MVRIA.
Rust repairs to be performed correctly regularly require the removal of the front and rear windscreens; doors, mudguards, bonnets and boot lids in order to access rusted panels. Local councils object strongly to the visual pollution created by half dismantled cars on footpaths or kerb sides, in driveways or in front yards for several days.
Stormwater Pollution
Many automotive paints are toxic containing high levels of lead, polyurethane or two-part epoxy resin. When carrying out rust repairs the paint is sanded off the panels, floats through the air and finally settles on the ground. Also, finishing off repaired panels involves the application and sanding back of toxic plastic body filler. The body filler dust also settles on the ground.
Rain water washes the toxic paint and body filler dust into the stormwater system polluting streams and rivers.
EPA has in place a regulation imposing heavy penalties on workshops, which permit, even by accident, these toxic wastes entering the stormwater system.
For these reasons mobile rust repairs are not approved by the Authority.”
30 Mr. Buscombe’s oral evidence was consistent with that contained in his report. Under cross-examination he conceded that it would be possible to review the Authority’s policy and that it would be possible to establish procedures to test the type of work that Mr. Bydon seeks to carry out in order to address the Authority’s concerns with respect to the environment. However, the cost of carrying out the proposed testing and supervision would be prohibitive.
Submissions
31 Mr. Whitelaw provided a written outline of submissions. This outline was with respect to there being a deemed refusal of Mr. Bydon’s application under section 34 of the Act, the issues to be determined by Tribunal and the proposed orders that should be made following the review. Mr. Whitelaw also made oral submissions to elaborate on his written outline.
32 Mr. Whitelaw submitted that the Tribunal should be satisfied on the evidence that the decision under review is not correct, regardless of the gaps in Mr. Bydon’s original application. He argued that the decision to reject the application was premature until the steps suggested by Mr. Bydon to Mr. Buscombe have been carried out as part of the assessment process. The matter should therefore be remitted to the Authority with directions and recommendations.
33 Mr. Whitelaw argued that Mr. Bydon’s right to work must be balanced with the Authority’s concerns but that it requires an objective assessment. This requires that the suggestions that Mr. Bydon and Mr. Higginbotham made on how to address the environmental issues need be explored. In this regard, there is no evidence to suggest that a protocol could not be established. Mr. Whitelaw argued that if this can be done, then that factor must take priority over the General Manager’s decision. Protocols should be established along the lines suggested by Mr. Higginbotham. The conditions should be discussed and agreed upon. The authority should then make its decision in the light of the findings reached. He said that if protocols are established and put into effect, and if the authority’s suspicions were confirmed, then Mr. Bydon would have no grounds for objection.
34 Mr. Whitelaw submitted that there are two relevant issues. Firstly, whether it is feasible to establish protocols; and secondly the compliance issues that would follow if Mr. Bydon were granted a licence. He argued that compliance issues are relevant to every licence. In any event, testing procedures could be put in place and a condition could be placed on any licence issued to Mr. Bydon that he advise the Authority of jobs that he is asked to carry out and details of clients so that the Authority could carry out spot checks at its discretion. This would be a powerful check on any licensee to ensure their compliance with the Authority’s requirements with severe consequences for non-compliance.
35 Mr. Whitelaw submitted that there is clear evidence of the need in the community for the services that Mr. Bydon proposes to carry out. Service stations have clients who want the service. If the right to perform mobile rust repairs is denied across the board, then those members of the public will be denied access to a service that they want. The convenience of the public should be taken into account in setting aside the General Manager’s decision.
36 As previously noted, Ms Charmers provided detailed written submissions She also provided oral submissions in which she elaborated on her written submissions. In part, Ms Charmers submitted:
- “ Deficiencies in the application - The type of repairs to be conducted
3.1 The applicant attached a letter to his application indicating his desire for a mobile repairer's licence. He indicated that the type of work will be "small rust repairs (not structural) and small dents."
3.2 In later representations, Mr. Higginbotham reiterates that 'The extent of the work that would be done would be small dents and minor rust repairs, not structural, no welding would be done." (Letter of 24 February 2003) …
3.9 The concept of a mobile repairer's licence is not specifically catered for in the Motor Vehicle Repairs Act 1980. However, the Authority does have the power to impose conditions on a licence at its discretion, to allow for flexibility in the provision of repair services. Section 33 of the Act provides:
- "(1) The Authority may, on granting a licence or certificate or at any other time, impose conditions or restrictions on the licence or certificate. …”
3.11 In applying the discretionary power to allow mobile repairers in any class of repair, the Authority has established policies and equipment lists to establish the requirements to be met by applicants before the Authority will entertain exercising discretion.
3.12 In the case of an application for mobile panelbeater licence the former Council established a policy of not exercising the discretion to grant such applications. … this would apply to those applicants which apply to have a "restricted" panelbeater licence since a mobile licence does not exist under the Act. …
4.1 [P]ursuant to section 64(4) of the Administrative Decisions Tribunal Act 1997 the Tribunal should give effect to this policy as it is the policy which was developed in consultation with industry members and local Councils who best understand and are aware of the issues raised by applications for mobile rust repair.
4.2 In particular, it is submitted that the policy is consistent with the operation of the Motor Vehicle Repairs Act 1980 as set out above and is not contrary to Government policy or law. The policy does not produce an unjust decision in the circumstances of this case.
The application of Niel Bydon de novo
5.1 In the application before the Tribunal it is difficult to know the intentions of the applicant if a licence were granted. Conflicting material has been provided by the applicant regarding the intention to weld panels. The expert evidence refers to safety measures which allow for welding duties. The Authority submits that the contradictory material provided leads to a conclusion that the Tribunal ought not to exercise the power to vary the reviewable decision or make a decision in substitution for the reviewable decision. …
Relevant authorities
5.3 The Authority submits that the additional matters now raised that were not specifically referred to previously are relevant for the Tribunal to consider. In Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44 (4 April 2002) it was held "These findings mean that all the matters raised by the VSIC are validly before the Tribunal. Because the Tribunal is conducting a merits review of the VSIC's orders, the application must be conducted as a hearing de novo. The Tribunal must have regard to "any relevant factual material" before it section 63 of the ADT Act."
5.4 The Authority refers to the decisions of Mills -v- Director General, Department of Transport [2000] NSWADT 61 (18 May 2000) as relevant to assessing the actions of the Authority with respect to the application of the policy relating to mobile rust repairers when considering section 64(4) of the Administrative Decisions Act.
5.5 “A similar case involving the interpretation of the Standards was decided by the Supreme Court in State Transit Authority v Sloey & Anor [1999] NSWSC 47 (12 March 1999). The Tribunal held that the employer was not entitled to certify the driver unfit to drive merely because he fell into a category of persons who presented an increased risk of symptoms, but was obliged to consider his individual circumstances.
5.6 The STA appealed to the Supreme Court which upheld the Tribunal's decision and found that an employer must take into account all evidence of a person's state of health before coming to a conclusion that he or she was not fit to drive a bus.
5.7 In relation to the role of the Standards, Barr J said at paragraph 41, that:
- The Standards do not have the force of a law. They are developed… to provide guidance for those making decisions regarding the granting of drivers licences. It is a most appropriate practice for the STA to adopt such standards, but such adoption gives them no greater force. They have not been put before the Parliament, and are simply a code of practice adopted by a statutory authority. ... Rigorous compliance with the standards must therefore be assessed in the context of the STA's more general duties under its legislation and occupational health and safety legislation. The sections of the standards quoted in the evidence make it clear that they are to be used as guidelines, and that the individual circumstances of each case should be considered.
- Next, the standards are intended to assist. ... In my opinion the Tribunal was correct in observing that the standards show themselves as intended to be used only as guidelines.
5.10 In this application the Authority has specifically reviewed the individual circumstances of the case and did not blindly followed the policy. Interviews were conducted with the applicant and Mr. Higginbotham to obtain details of the proposed operation. The Authority shared its concerns with the applicant and provided opportunity for amendment to the application. On 29 March 2003 the General Manager requested an investigation into the application to consider the matter on its merits.
Why a mobile rust repairer is different to other types of mobile repairers
6.1 The Authority submits that the development of the policy was based upon proper foundation. It was developed on the advice of the Panel Beater Advisory Committee of the former Council and after consultation with local Councils. The Authority rejects the evidence of Mr. Higginbotham. The Authority refers to the evidence of the Respondent's witness and urges the Tribunal to accept this evidence. The evidence of Mr. Buscombe is based upon a sound knowledge of the operation of the Act and the industry. He was also involved in the development of policies relating to pollution and safety.
6.2 The purpose of the involvement of the local Councils is the requirement that licence holders do not offend any other legislation as set out in section 18(3) of the Act. The principal concern of local Councils was pollution. It is noted that it is mandatory for the Authority to be satisfied that the legislation will be complied with before being able to grant the licence.
6.3 The information provided by the applicant does not satisfy this criteria.…
- Whether the applicant is fit and proper to hold a licence
- 7.1 In the representations, it was disclosed that Mr. Bydon has been running a mobile repair business for three years. This reveals a long term breach of the Motor Vehicle Repairs Act 1980 by, contravening section 15 of the Act by carrying on the business of a repairer by repairing motor vehicles without being the holder of a licence.
7.2 The Motor Trade Legislation Amendment Act 2001 No 86 proclamation of 27 February 2002 introduced section 87(3) which provides that a Local Court may impose a maximum penalty of $11,000. (100 penalty units) for each offence established pursuant to section 15. The maximum penalty for a section 15(1) offence was changed on 1 March 2002 from 20 penalty units to 1,000 penalty units being $110,000. Mr. Whitelaw has said in correspondence that he "would be very disappointed if the MVRIA decides to make a big deal out of any past activity of his doing mobile rust repair", Email of 19 June 2003.
7.3 Contrary to Mr. Whitelaw's views the offences disclosed are not trivial and are such that they have come under increased scrutiny of the Government, resulting in increased penalties. The act of unlicensed repairing goes to whether the applicant is fit and proper to hold a licence if it were otherwise appropriate to be granted, pursuant to section 18 of the Act.
Relevant cases
7.4 In Achi -v Commissioner of Police, New South Wales Police Service [2001] NSWADT 135 (15 August 2001) it was held:
- " The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (per Toohey and Gaudron JJ at par 63 of their decision); and that where a person must satisfy a legislative requirement of being `fit and proper' in relation to a licence of some kind, the requirement takes its meaning `from the activities which the person is or will be authorised to engage in by virtue of the licence and the ends to be served by those activities ... depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question: ( Australian Broadcasting Tribunal v Bond per Toohey and Gaudron JJ at par 36 of their decision ).
According to the Court in its earlier decision of Hughes and Vale, fitness with respect to an office involves three things: honesty, knowledge and ability. It quoted Coke: `honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotence or poverty neglect it'. (Hughes and Vale at 156, Sakellis at 548).
Hughes and Vale suggests there is a strong connection between dishonesty and unfitness but does not preclude a person convicted of a crime of dishonesty from never again being a fit and proper person. Walters J in Sobey observes that a criminal record is germane and crucial in determining the question of a person's fitness but does `not go so far to say that one criminal offence must necessarily deprive a person of that fitness ...'. (at 75).
- “In Sakellis v Officer in Charge of Police, Paddington (1968) 2 DCR (NSW) 3, a person applied for a license as a commercial subagent. The applicant was required to satisfy the court under the relevant legislation that he was, inter alia , of good fame and character, that he was a fit a proper person to hold a license and, subject to sub-section 13 (2) of the Act, had not been convicted of an offence punishable on indictment.
Sub-section 13(2) of the Commercial Agents and Private Inquiry Agents Act 1963 provided, inter alia, that where, in dealing with an application, the court is satisfied that the applicant has been convicted of an offence punishable on indictment, it may grant the application if, in the opinion of the court, the offence is such that, either from its nature or from the circumstances in which it was committed, it ought not, having regard to the public interest, to disqualify the applicant from being or acting as a subagent.
The applicant had some twelve months previously pleaded guilty to breaking, entering and stealing from his employer. The applicant said that he was driven to it by emotional and financial strain resulting from domestic difficulties. The applicant had been placed upon a bond to be of good behaviour for three years and was further required to place himself under the supervision and guidance of the Adult Probation Officers. The bond was still current when his application for a license was considered.
Henchman DCJ referred to Ex parte Davis (1949) 50 SR (NSW) 158, in which Herron J said (at 167):
It would be difficult indeed that a man who was convicted of breaking, entering and stealing could be regarded as a man of good character at the present time. It seems to me that generally speaking, a man who commits a serious crime may thereby forfeit privileges which are thereby available to honest men. One of these privileges is the entry into a profession which is in the public eye.
In holding that the applicant was not a person of good fame and character, Henchman DCJ said (at 9):
I cannot agree with the applicant's counsel's submission that there can be a different standard of honesty in different occupations. A man is either honest or he is not, and in my view if he is not, he is unfit for any licence of the present type granted by the public. This not to say a man convicted once on a crime involving dishonesty may never again be a fit and proper person to hold a licence, ...
In Law Society of NSW v Foreman (1994) 34 NSWLR 408, Mahoney JA defined character as follows (at 449):
Character involves, inter alia, two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. Character is tested not by what one does in good times but in bad
In Re Habis (The Licensing Court of NSW, 9 July 1998, unreported) a Licensing Magistrate refused an application by a person for a certificate of registration as a real estate salesperson where the applicant had pleaded guilty some nine months previously to stealing money from his employer. That was the same offence for which the applicant in the present was convicted. The sum stolen in Habis was a larger amount, namely $8,983.
The applicant in that case had pleaded guilty, was sentenced to 100 hours community service and placed upon a bond for two years to be of good behaviour and to accept the supervision and guidance of the NSW Probation Service.
Section 57.8 of the Property Stock and Business Agent's Act 1941 provided that a certificate of registration shall not be issued to an applicant who is not of good fame and character or who is not otherwise a fit and proper person to hold a certificate of registration. The Licensing Magistrate said:
The fact that there is less than one year elapsed from the date that the matters were finally disposed of is not a sufficient period of time to permit Mr. Habis to satisfy this Court that he is a person in whom the trust of the Court can be reposed and a suitable person to be granted or a fit and proper person to be granted the certificate which he seeks.
- 7.7 If the Tribunal were to find that the mobile rust repair licence ought to have been granted in the circumstances then Authority submits that the matter should be remitted back to the Authority for consideration of the issues.
7.8 In the case of Black v Licensing Court Of New South Wales & Ors [2001] NSWSC 1005 (9 November 2001) it was held:
- "Moreover, so far as discretion is concerned, it is clear that this court will only interfere with a finding made in the exercise of a discretion in a situation where there has been a breach of the principles long settled and well established in House v. The King (1936) 55 CLR 499. The very matter that the plaintiff argued had not been taken into account clearly seems to me to have to have been taken precisely into account. In any event, there is a strong presumption that the exercise of a discretion such as the present has been correctly exercised. This is even more so in the case of a specialised tribunal such as the Licensing Court ( Australasian Coal & Shale Employees Federation v. The Commonwealth (1953 94 CLR 621 at 627); Hart v. Bell (NSWCA, unreported 6 November 1992).
- 7.10 The application details need to set out the type of repairs to be carried out, the reason for the intended repair, the extent of the intended repairs, how the repairs are performed, areas of vehicles that are repaired and the treatment applied to the repaired area. All these issues relate to the policy, being reference to the quality of repairs, pollution issues and safety matters.
7.11 It is submitted that insufficient information exists for the Tribunal to consider granting a licence in substitution of the reviewable decision.
Determination of review by the Tribunal
8.1 Pursuant to section 63 of the ADT Act the Authority submits that the Tribunal should affirm the reviewable decision of the authority.
8.2 In the alternative it is submitted that the Tribunal ought to remit the matter for reconsideration by the administrator in accordance with any directions or recommendation of the Tribunal in accordance with s63(3) of the ADT Act.”
37 The Tribunal’s role is to determine the correct and preferable decision on the basis of all the evidence before it. The questions for decision ultimately are whether or not Mr. Bydon is capable of carrying out quality repairs without contravening the Act or any other Act and whether he is a fit and proper person to hold a panelbeater's licence. If so, it is then necessary to consider whether it is appropriate to impose conditions on the licence, which would allow him to undertake mobile rust repairs.
38 I note the authority’s concerns that Mr. Bydon has been carrying on business without an appropriate licence for several years. Mr. Bydon has admitted as much and asserts that during that time they have been no complaints by consumers in regard to the work that he has done. He cites this as evidence of the quality of his workmanship. Mr. Bydon asserts that any future work that he carries out will be done strictly in accordance with the Act and any other applicable legislation. I do not share Mr. Bydon’s confidence. Based on the evidence before me I agree that the General Manager has good reason to be concerned that Mr. Bydon may not have sufficient knowledge of the obligations that would be placed on him by the licence he seeks or that he would be able to meet those obligations.
39 Mr. Bydon’s evidence demonstrated that he has minimal knowledge of the applicable licensing regime and that he has acted contrary to the Act for a significant period of time. This is a serious breach of a system that has been established to ensure that the industry operates in an orderly, regulated manner for the benefit of both those operating in the industry and the consumers of their services. While there is no suggestion that Mr. Bydon has taken advantage of his clients, he is working in an industry that has had a history of disreputable conduct. The second reading speech by Mr. Hills, the Minister with carriage of introducing the Bill for the Act into the Parliament, refers to some of the problems in the industry and the procedures to be put in place by the Act to address those problems. It is therefore imperative that those operating in the industry conform to rigorous standards. The regulatory regime is designed to achieve that.
40 In his second reading speech on the introduction of the Motor Trade Legislation Amendment Bill into the NSW Legislative Assembly, Mr. Watkins, the then Minister for Fair Trading, stated:
- “When people need to get their cars repaired, they also need to have confidence that repairers are technically capable and that if the customer has complaints there is an impartial process to resolve the dispute. These and other consumer protection measures can be found in the Motor Vehicle Repairs Act 1980. … Unlicensed dealing and repairing provides an obvious avenue for the disposal of stolen cars and the rebirthing of vehicles. ... Reputable motor dealers rightly get frustrated and angry when their market is being attacked by backyard shonks and charlatans.”
41 I disagree with Mr. Whitelaw to the extent that he seeks to minimise the significance of Mr. Bydon’s conduct. In my view, this conduct is a factor to be considered in determining whether it is appropriate for Mr. Bydon to be granted the licence he seeks.
42 In my view, Mr. Bydon would also need to demonstrate his ability to carry out the proposed work to industry standard before he is issued with the licence. The evidence before me with respect to the standard of Mr. Bydon’s work was unconvincing. I note that it was suggested that Mr. Bydon could undergo a test at Sydney College of TAFE to establish that he is capable of quality repairs. In my view, this issue would be resolved if he were to satisfactorily complete that testing.
43 Concerns about occupational safety and the environmental impact of the work that Mr. Bydon seeks to perform are common ground between the parties. I note the Authority’s policy with respect to mobile rust repairers and the Authority’s submissions that the policy is consistent with the operation of the Act and is not contrary to Government policy or law. I agree with the submissions that this is a relevant document to be considered in this matter. In my view it is significant that the policy was developed in consultation with local Councils. This fact has added significance in the absence of evidence of the views of those Councils with respect to the activities that Mr. Bydon proposes to undertake.
44 I note however that this policy was developed under the Authority’s predecessor, the Motor Vehicle Repair Industry Council and that the Authority subsequently adopted it with little change. The material before me suggests that the policy was developed some time prior to August 1998. A significant period of time has passed since its development and given the various opinions offered in this matter the time may well have come for a review of this policy. Should such a review take place, it could be beneficial to the industry if the protocols that Mr. Higginbotham and Mr. Whitelaw have suggested were used as a basis for trials to test whether it is possible to carry out the work that Mr. Bydon proposes to undertake without raising significant safety, environmental or pollution concerns.
45 Notwithstanding that view, I cannot be satisfied on the evidence before me that Mr. Bydon could carry out the work that he proposes to undertake without breaching the relevant legislative provisions governing safety, environmental and pollution matters. I appreciate that it is difficult for Mr. Bydon to produce evidence to contradict the Authority’s opinions and to dispel the Authority’s concerns without the Authority’s cooperation. I also appreciate the budgetary constraints under which the Authority operates. However, I would require stronger evidence than that which I have before me before I could be satisfied that the Authority’s concerns are not justified.
46 Having formed these views, I am satisfied that the General Manager’s deemed decision to refuse Mr. Bydon’s application is the correct and preferable decision. Accordingly, the decision to refuse Mr. Bydon’s application is affirmed.
47 This does not preclude Mr. Bydon from making further application. I have attempted to set out the steps that he would need to undertake in order to show that he is able to perform quality repair work and I encourage the Authority to undertake a review of its policy relating to mobile rust repairers.
Orders
- 1. The deemed decision by the General Manager is affirmed.
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