Byfield and Commissioner For Consumer Protection

[2012] WASAT 217

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: MOTOR VEHICLE DEALERS ACT 1973 (WA)

CITATION:   BYFIELD and COMMISSIONER FOR CONSUMER PROTECTION [2012] WASAT 217

MEMBER:   JUDGE T SHARP (DEPUTY PRESIDENT)

MS C WALLACE (MEMBER)
MR A TOWNSEND (SESSIONAL MEMBER)

HEARD:   17 AUGUST 2012

DELIVERED          :   12 NOVEMBER 2012

FILE NO/S:   VR 111 of 2012

BETWEEN:   TROY BYFIELD

Applicant

AND

COMMISSIONER FOR CONSUMER PROTECTION
Respondent

Catchwords:

Motor vehicle licensing ­ Yard manager's licence ­ Fit and proper person ­ Good character and repute ­ Whether fit to be the holder of a licence, given previous convictions and pending charges ­ Issues of honesty

Legislation:

Motor Vehicle Dealers Act 1973 (WA), s 16(1), s 16(1)(b)
State Administrative Tribunal Act 2004 (WA), s 27(3)

Result:

Application upheld

Summary of Tribunal’s decision:

Mr Byfield applied to the Tribunal for a review of a decision of the Commissioner for Consumer Protection to refuse to renew his motor vehicle yard manager's licence.
Mr Byfield has worked in the motor vehicle industry for some 10 years.  He has had a number of prior criminal convictions between 1997 and the present time, which he disclosed to the Commissioner in his renewal application.  In addition, Mr Byfield had charges pending against him which he disclosed to the Commissioner.  However, he had also been charged with giving false information to the Corruption and Crime Commission, which he did not disclose.  In light of such matters as the prior convictions, pending charges, and the view taken of Mr Byfield's lack of honesty, the Commissioner refused to renew Mr Byfield's licence on the basis that he was not of good character and repute and nor was he a fit and proper person to hold such a licence.
On review of the Commissioner's decision, there was no basis for a finding that Mr Byfield was not of good character and repute and a fit and proper person to hold a motor vehicle yard manager's licence.  The Tribunal considered that some of the older convictions could be given less weight.  The more recent convictions and the pending charges, though serious, were unrelated to his duties as yard manager.  Mr Byfield's failure to disclose the pending charges could be explained, as could his conduct which lead to the allegations of dishonesty.

Category:    B

Representation:

Counsel:

Applicant:     Mr P Bevilacqua

Respondent:     Mr J Derby

Solicitors:

Applicant:     Self-represented

Respondent:     Department of Commerce

Case(s) referred to in decision(s):

Grover v Commissioner of Police [2005] WASC 263

Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127

Minitti v Motor Vehicle Industry Board [2011] WASCA 275

Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35

Smith v Director­General of Transport [2004] WASCA 64

Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. This is an application for a review of a decision made by the Commissioner for Consumer Protection (respondent) not to renew the motor vehicle yard manager's licence of Mr Troy Byfield (applicant).

2. The applicant's application is dated 18 July 2012.  The applicant provided a statement of issues, facts and contentions dated 8 August 2012 and relied upon a bundle of documents also dated 8 August 2012 (Exhibit 7).  The respondent provided an amended statement of issues, facts and contentions dated 16 August 2012 and a bundle of documents dated 27 July 2012 (Exhibit 2).  In addition to various witness statements contained within the parties' bundle of documents, the parties also filed the following witness statements:

   •Ms Claire Bam, Licensing Manager with the Department of Commerce dated 8 August 2012 (Exhibit 1);

   •The applicant dated 16 August 2012 (Exhibit 3);

   •Mr Andy Diamantis, Dealer Principal, Subaru Osborne Park dated 15 August 2012 (Exhibit 5);

   •Ms Danielle Giardina, undated (Exhibit 6); and

   •second witness statement of the applicant, undated (Exhibit 4).

3. In addition, the applicant, Ms Giardina and Mr Diamantis gave oral evidence at the hearing.

Facts

1. The facts of this matter are, to a large degree, agreed by the parties other than in respect of some discrepancies between the evidence of Mr Byfield and Ms Bam in relation to what was said in a number of telephone conversations which took place between them, which will be dealt with in more detail shortly.

2. The applicant has been involved in the motor vehicle industry for the past 10 years.  The applicant was licensed initially as a salesperson and then as a yard manager.  It is not in contention between the parties that there were two periods when the applicant was employed, while unlicensed, as a yard manager by a licensed motor vehicle dealer.  The first period occurred when the applicant was employed at Midwest Auto from 25 August 2008 to 15 June 2009, at which time the applicant contends that he was unaware that his licence had expired.  The second period was from 15 March 2010 to 1 April 2010, a very brief period of some 16 days, during which time the Motor Vehicle Industry Board (Board) (the respondent's predecessor) was considering the renewal of the applicant's licence but had not yet made a decision.

3. The applicant has been employed by various licensed dealers in the industry, including Giant Autos (1997) Pty Ltd, Midwest Auto, Magic Nissan, and currently with Subaru Osborne Park, with whom he has been employed for the past 12 months as its used car manager.

4. In early 2005, following the applicant lodging an application for a yard manager's licence, he attended a hearing before the Board to enable the Board to assess the application in the context of the applicant's prior convictions. At that time those prior convictions were assault occasioning bodily harm (1997 and 2001), and using threatening words (1999). The Board was satisfied at that time that, despite those prior convictions, the applicant met the criteria to hold such a licence set out in s 16(1) of the Motor Vehicle Dealers Act 1973 (WA) (MVD Act).

5. On 24 May 2012, the applicant submitted to the respondent an application for renewal of his yard manager's licence (Application).  The applicant attached to the Application a National Police Certificate (NPC) (pages 84 and 85 of Exhibit 2), which disclosed the following prior convictions and pending charges:

   a)assault occasioning bodily harm in 1997;

   b)using threatening words in 1999;

   c)assault occasioning bodily harm in 2001;

   d)breach of a violence restraining order in 2009;

   e)assault occasioning bodily harm in 2009;

   f)cultivation of a prohibited plant in 2010;

   g)assault occasioning bodily harm for which the applicant was charged in 2010 and, shortly before the hearing of this matter, pleaded guilty and was convicted; and

   h)being armed in a way that may cause fear, for which the applicant was charged in 2011 and which the applicant is defending.

6. On the second page of the Application, the applicant was asked whether, in the last three years, he was aware of any proceedings pending against him for an offence, to which he responded 'no' (page 82 of Exhibit 2).  This, of course, was incorrect, and the applicant admitted in oral evidence that he subsequently realised his mistake in this regard.  The NPC attached to the Application clearly showed that there were pending charges against the applicant at the time of his Application.

7. In addition, on 29 May 2012, the Corruption and Crime Commission (CCC) charged the applicant with six offences of giving false evidence to the CCC during private examinations which occurred in November 2010 and January 2011 (CCC Charges).  The CCC alleges that the applicant had falsely denied witnessing and being involved in a fight at Kwinana Motorplex involving outlawed motorcycle clubs, to which he subsequently admitted.

8. On 6 June 2012, the respondent advised the applicant by letter that it had formed a preliminary view to refuse the application on the basis of the applicant's prior convictions and pending charges (page 86 of Exhibit 2).  In that letter, the applicant was invited to provide any additional documentary evidence in support of his Application which may address the respondent's concerns.

9. On 18 June 2012, the applicant telephoned a delegate of the respondent, Ms Claire Bam, and discussed with her the cultivation conviction and the pending assault charges.  Ms Bam's evidence (Exhibit 1) was that, in relation to the cultivation conviction, the applicant informed her that he did not commit the offence, but pleaded guilty to the charge to assist a friend who was on parole.  In oral evidence, the applicant denied that he intended to mislead the Court by admitting to the offence in order to protect his friend, and stated that he pleaded guilty because he believed he was morally accountable for the fact that the cannabis plants were present in his home.

10. In relation to the assault charges which were at that time still pending, although there are slight discrepancies between the evidence of the applicant and Ms Bam, much of what was said in regard to those pending charges was not in contention. The applicant admitted in oral evidence that, at the time of that initial conversation, he did not disclose to Ms Bam that his brother was involved in the incident. Instead, he chose to provide her with a version of events which later proved to be inconsistent with what he told the court when he pleaded guilty. What the applicant told Ms Bam was that he was inside his home with his son when he noticed the interior light was on in his vehicle outside and when he went outside to turn the light off he noticed three men breaking into the vehicle. The applicant said that he confronted the men because he needed to defend himself, his property and his son. What he told the court is set out at [24].

11. In oral evidence, the applicant informed the Tribunal that he was concerned about discussing with Mr Bam the details of the pending charges, given that at that time he was defending them.

12. The applicant was advised by telephone on 4 July 2012 by Ms Bam that, on the basis of the additional information that he had provided, the respondent had resolved to grant the application, subject to conditions.

13. The following day, the Police provided to the respondent the Statements of Material Facts for the assault charges and the weapons charge (pages 92 ­ 94 of Exhibit 2).  What appears to be of concern to the respondent about that information was the discrepancy between the information provided by the applicant to Ms Bam and to the Police in regard to the pending assault charge, in particular in relation to the complete omission to Ms Bam of the fact that the applicant's brother was involved in the incident.  Then, on 7 July 2012, the respondent became aware for the first time of the CCC Charges, as well as various media reports of alleged associations between the applicant and the outlawed motorcycle club (pages 96 ­ 99 of Exhibit 2).

14. As a result of these matters coming to light, the respondent sent the applicant a letter on 9 July 2012 (page 100 of Exhibit 2) informing him that the respondent intended to postpone granting the application pending further enquiries and provided the applicant with another opportunity to provide explanations and documents.

15. What then followed was a further telephone conversation between the applicant and Ms Bam on 10 July 2012, in relation to which the applicant's evidence and that of Ms Bam is fairly consistent, other than one important aspect.  In relation to the pending assault charges, it appears from Ms Bam's contemporaneous note of this telephone conversation (page 106 of Exhibit 2) that very little further information was provided at this time by the applicant.  In relation to the CCC Charges, the applicant informed Ms Bam that he omitted to mention these charges on his Application because it was not a conviction or pending charge listed on his NPC and therefore he did not understand that it was something he needed to bring to the attention of the respondent.  The applicant confirmed with Ms Bam that he had witnessed a fight between two outlawed motorcycle clubs.  However, he informed Ms Bam that he was not himself a member of an outlawed motorcycle club and that the charges related to him failing to inform the CCC in its investigations that he was present when the fight took place.

16. The matter in relation to which the evidence of Ms Bam and the applicant differs is in respect of what Ms Bam states the applicant informed her in relation to the weapons charge (para 31 of Exhibit 1 and page 106 of Exhibit 2).  Ms Bam's written evidence was that the applicant told her that his brother was glassed at the Saint nightclub and had been harassed by the doorman during the evening, and that the applicant had confronted the doorman and threatened him with words to the following effect 'back up or I’ll bloody stab you'.

17. The applicant, in both his signed witness statements (Exhibits 3 and 4) and in his oral evidence, denied making this statement to Ms Bam.  In addition, the alleged statement itself appears to be inconsistent with the pending weapons charge.  However, the applicant did admit in his written evidence to saying to Ms Bam (at para 10 of Exhibit 3) that he showed one of the Saint's doormen a knife that he had allegedly taken from one of the men who had assaulted his brother and said 'your fucking mate was going to stab my brother'.

18. It was submitted by counsel for the applicant at the hearing that Ms Bam may have misheard what was said to her and taken down an incorrect record of the conversation, on the basis that it makes little sense that the applicant would make such an admission in relation to charges which he was defending.  A number of witness statements taken from those present when the incident took place have been filed with the Tribunal in the parties' bundle of documents and none refer to such a statement having been made.

19. During 13 ­ 16 July 2012, the respondent was provided with a statement of material facts for the CCC Charges from the CCC, and witness statements in relation to the assault charges and weapons charge from the Police.

20. A final telephone conversation then took place between the applicant and Ms Bam on 17 July 2012, the substance of which does not appear to be in contention.  It was during this telephone conversation that the applicant admitted to his brother's involvement in relation to the pending assault charges and read to Ms Bam parts of his brother's witness statement filed in those proceedings, which asserted that the applicant's brother was assaulted by three males outside the applicant's home.  The statement alleged that the applicant's brother called out for the applicant to assist him in defending himself.  The respondent contends that, by reading those parts of his brother's witness statement to Ms Bam, the applicant was representing that that was what had occurred.  In oral evidence, the applicant stated that he was merely informing the respondent what his brother's evidence was in those proceedings.  Such assertions, of course, differ from the initial information that the applicant had provided to the respondent and differed again to the facts which were ultimately agreed when the applicant pleaded guilty to those charges.

21. On 9 August 2012, the applicant pleaded guilty to the assault charges on the basis of agreed facts, including that his brother saw the victims on the applicant's property and challenged them in relation to breaking into the applicant's car, and that, rather than defending himself, his brother initiated the altercation that ensued.  The Tribunal was notified by the applicant's legal representative following the hearing that the applicant was sentenced in relation to these convictions on 5 September 2012 by way of a Community Based Order.

22. In a letter to the applicant dated 17 July 2012, the respondent refused the applicant's Application (pages 108 ­ 116 of Exhibit 2).  The reasons for decision of the respondent, also dated 17 July 2012, were attached to the letter to the applicant and were to the following effect:

    a)The applicant is not a person of good character based on the following factors:

    i)the nature of the applicant's criminal history which extends over a number of years and includes incidents of violent and threatening behaviour;

    ii)even though the respondent placed less weight on the pending Police charges, the respondent took into account the applicant's own concessions that he had recently assaulted a number of persons, carried a concealed knife, and threatened an employee of the Saint nightclub;

    iii)the applicant demonstrated a lack of honesty during the course of the application process by giving false and differing accounts of events to the respondent's delegate and by understating the injuries that were sustained by the applicant's victims, and by failing to disclose the pending CCC Charges;

    iv)further in relation to the applicant's lack of honesty, the respondent considered that the applicant sought to minimise the significance of the cultivation conviction by explaining to a delegate of the respondent that he had pleaded guilty to the charge in order to protect a friend from the conviction and, thus, conceded that the applicant had misled the Court.

    b)The applicant is not a person of good repute, given the number and serious nature of the applicant's past convictions, and news media reports of the applicant's association with an outlawed motor cycle club.

    c)The applicant is not a fit and proper person in that the applicant's criminal and dishonest conduct indicates a general lack of honesty, integrity and regard for the proper operation of justice, which the respondent contends are essential for carrying out the vocation of a yard manager.

Statutory regime

1. The MVD Act provides a regime to regulate dealing in motor vehicles. Part II of the MVD Act deals with the licensing and registration of various categories of persons who wish to engage in that activity.

2. Section 16(1) of the MVD Act relevantly deals with the application for and grant of a yard manager's licence and provides as follows:

   Subject to this Act, a person who applies to the Commissioner in the approved form for a yard manager's licence and pays to the Commissioner the prescribed fee therefor shall be granted such a licence upon satisfying the Commissioner ­

   …

   (b)that he is a person of good character and repute and a fit and proper person to hold such a licence; and

   (c)that he understands fully the duties and obligations imposed by this Act on dealers, yard managers and salespersons[.]

   …

The criteria of 'good character and repute’ and ‘fit and proper person'

1. The Tribunal needs to be satisfied that the applicant is both 'of good character and repute' and is a 'fit and proper person' to hold a yard manager's licence, to the extent that those criteria do not overlap;  Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 (LJW), at [25].

2. In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, Dixon CJ and McTiernan and Webb JJ considered the expression 'fit and proper person' and said, at 156 ­ 157:

   The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations.  But their very purpose is to give the widest scope for judgment and indeed for rejection.  'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability:  '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 impotency or poverty neglect it'.  When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.  (Citations omitted)

1. The expression was also considered by Hale J in Maxwell v Dixon [1965] WAR 167, in the context of a refusal of an application to renew a land agent's licence. At 169, his Honour said:

   It is true that 'fit and proper' must be interpreted in the light of the subject-matter of the Act in which the expression appears.  It, and the equivalent 'suitable', appears in a wide variety of licensing Acts, and it normally comprises the three characteristics of honesty, knowledge and ability: Hughes & Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127, at 156­157. Clearly different qualifications are needed by eg lawyers, transport operators, hotel keepers and land agents, but as is shown by the cases cited in the judgment referred to, it is not necessary to confine oneself to the special provisions of the Act in question in deciding whether a man is fit provided one gives weight only to matters which can fairly be seen to be relevant to the vocation in issue.

   …

   The issue whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s 16(1) of the [Commercial and Private Agents] Act, is not capable of being stated with any degree of precision.  But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442).

2. It is clear from the statutory regime that the motor vehicle dealers industry is regulated for the protection of the public and that honesty and integrity are required such that the public are not at risk of purchasing motor vehicles from those who may be considered to be unscrupulous, dishonest or fraudulent; Minitti v Motor Vehicle Industry Board [2011] WASCA 275 at [25].

3. As to what constitutes 'good character', the Tribunal is assisted by Newnes JA in LJW at [28]:

   While 'good character' does not have a precise meaning, it ordinarily refers to a person's moral qualities (whether known to others or not), as opposed to the estimation in which (fairly or unfairly) the person is held by others, that is, their repute: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431­432; Re T & Director of Youth & Community Services (1980) 1 NSWLR 392, 398­399.

4. At [30], his Honour goes on to state that a person may be of good repute but, unknown to those who hold that particular opinion, have serious deficiencies in their moral character, and conversely, a person may not be of good repute because of a widespread but mistaken belief that they are, for example, dishonest when, in fact, they are possessed of good moral qualities.

The prior convictions

1. The significance of prior convictions in the context of an inquiry into the fitness and propriety to hold vocational licences was considered in Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996), in which Wheeler J, in the context of an agent's licence, set out a number of factors which are relevant to the Tribunal's deliberations in a matter of this nature. In this regard, her Honour said:

   It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.

   With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed.  Convictions will, in my view, generally be regarded as more serious in the statutory context if:

   (1)they occur in the course of or relate to the carrying out of the occupation of inquiry agent.  See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420;

   (2)they are offences of dishonesty, broadly understood.  This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;

   (3)they occur while the person is the holder of a licence under the Act;

   (4)they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.

   Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:

   (1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes.  See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited.  The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;

   (2)if the offences were committed a substantial time ago.  I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others;

   (3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;

   (4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references.  As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.

2. Prior convictions and the significance of those convictions must always be considered in light of all the evidence which the parties have presented, rather than in isolation, with particular regard to the vocation and what duties the vocation entails for which the licence is sought; Smith v Director­General of Transport [2004] WASCA 64 at [36].

The pending charges

1. The respondent, and therefore the Tribunal, may have regard to the pending charges, but ought also to consider whether the charges are self­evidently unsustainable; Grover v Commissioner of Police [2005] WASC 263 at [46] and [47]. In relation to a consideration of pending charges, the Tribunal, as it does with prior convictions, will consider whether they occurred during or in the course of carrying on duties pursuant to the particular vocation, whether they are such that they may result in a lack of confidence of the public in the applicant undertaking those duties, and the nature of and circumstances surrounding those pending charges.

The parties' positions

The respondent's position

1. At [25], the Tribunal has set out the respondent's reasons for the decision under review.  In addition to those matters, the respondent made the following submissions at the hearing:

   a)The culmination of the convictions and pending charges, as well as the applicant's alleged propensity to misrepresent the truth, evidences the applicant's lack of ability to distinguish between right and wrong behaviour and thus shows a general disregard for the law and appropriate behaviour.  This further demonstrates that the applicant lacks the moral qualities required for a finding of good character.

   b)The applicant's dishonesty is of particular concern in the context of a statutory licensing scheme designed to ensure that members of the public can rely on accurate information provided in the course of transactions involving significant value.

   c)Given that the applicant was employed as a yard manager by licensed motor vehicle dealers on two occasions whilst unlicensed, this adversely reflects on the applicant's knowledge of his obligations under the licensing scheme as well as his ability to comply with his obligations and therefore puts into question whether he has the requisite knowledge and ability required to be licensed in that vocation.

   d)A reasonable member of the public, having regard to the applicant's convictions, pending charges and media reports of the applicant's association with an outlawed motorcycle club, would not consider the applicant to be a person of good repute.

2. The respondent submits therefore that the Tribunal should reach the same decision as that reached by the respondent, being that the applicant does not meet the criteria set out under s 16(1)(b) and (c) of the MVD Act.

The applicant's position

1. The applicant's position, in summary, can be set out as follows:

   a)In relation to the applicant's earlier convictions, given the significant passage of time and taking into account the hearing before the Board in 2005 and its decision to then license the applicant, those convictions should be given little, if any, weight by the Tribunal.

   b)In addition, on 4 July 2012, the respondent made the decision to grant the applicant a yard manager's licence, subject to conditions, with the knowledge of the applicant's prior convictions.  In particular, the respondent was aware that the applicant had misled the Court in relation to the cultivation charge, knew that the applicant had not informed the respondent of the presence and involvement of the applicant's brother in relation to the pending assault charge, and knew of the weapons charge.

   c)None of the prior convictions or the pending charges occurred within or arose out of the applicant's vocation and are unrelated to the activities and obligations which the applicant undertakes in that vocational context.

   d)The applicant submits that the Tribunal should place very little, if any, weight on the pending charges.  In relation to the weapons charge, the applicant has pleaded not guilty, there is very little material placed before the Tribunal which would support that charge, and it is an offence that did not occur in, nor is related to, the vocation.  In respect of the pending CCC Charges, the applicant is also defending those charges and the applicant also contends that it is a matter in relation to which exceptional circumstances exist.  The applicant feared for his safety and that of his family and therefore was reluctant to admit being present at a fight which occurred between two outlawed motorcycle clubs, due to the potential risk of retaliation.

   e)In relation to the applicant's reputation, the applicant denies any association with an outlawed motorcycle club and submits that there is no evidence of any such association.

   f)The applicant contends that he does possess the characteristics of honesty and integrity, and that this is evidenced by the number of character references which have been filed with the Tribunal and by the fact that there has never been a customer complaint against him in the 10 years that he has been employed and licensed in the motor industry.  In relation to the discrepancy between the applicant's evidence and that of Ms Bam in relation to charges which were then pending, the applicant submits that the discrepancy is as a result of miscommunication and misinterpretation by Ms Bam of what was a conversation occurring in a hasty and vague manner, and the applicant's reluctance to provide detail in relation to charges which he was defending.  The applicant denies that this evidences dishonesty or a lack of moral integrity on his part.  In relation to the lack of identifying the CCC Charges when the applicant completed his Application, the applicant gave evidence that, due to his lack of knowledge of the nature of those charges, he did not understand that he was obliged to disclose those matters.

   g)The applicant maintains that he is a person of good character and a fit and proper person to hold a yard manager's licence, despite his prior convictions and pending charges, because those incidents have occurred in particular or exceptional circumstances and do not relate to the applicant's particular vocation and do not generally relate to financial matters or dealings with the public.

   h)The applicant's character and whether he is a fit and proper person should be determined particularly in the context of the vocation itself and, in this regard, the Tribunal ought to place significant reliance on the character references provided by the applicant, in particular, the applicant's employer.  The Tribunal should also give consideration in this regard to the fact that the applicant is one of three nominees out of 30 AHG employees from 30 AHG dealerships for the 'used car manager of the year 2012' award.

   i)The two instances where the applicant was employed as a yard manager whilst not licensed ought not to adversely reflect on his knowledge and ability, and were merely as a result of a misconception on the part of the applicant rather than a lack of understanding of the statutory regime and his obligations generally.

2. On the basis of the above submissions, the applicant therefore submits that the Tribunal should find that he meets the criteria set out under s 16(1)(b) and (c) of the MVD Act.

The Tribunal's findings

1. In a review proceeding, subject to the provisions of the relevant enabling Act, the Tribunal may affirm the decision that is being reviewed, vary that decision or set it aside and substitute its own decision.  The Tribunal may also send the matter back to the decision­maker for reconsideration.  The review is to be by way of a hearing de novo and it is not confined to matters that were before the decision­maker; State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1). The reasons for the original decision­maker's decision do not limit the Tribunal in conducting the review proceeding; SAT Act s 27(3).

The applicant's prior convictions

1. Leaving aside the question of honesty, which will be dealt with separately, the Tribunal has formed the view that the applicant's prior convictions are not sufficient, in and of themselves, to support a finding that the applicant is not of good character and not a fit and proper person to hold a yard manager's licence.  The Tribunal has formed this view based on the following considerations.

2. The prior convictions between 1997 and 2001 are regarded by the Tribunal as having occurred long enough ago that they should not be given much weight.  The cultivation conviction, the breach of the restraining order and the recent assault charge occurred in more recent times.  However, none of the prior convictions occurred during or are related to the applicant's vocation.

3. The Tribunal does not accept the respondent's submission that the prior convictions evidence a propensity for aggressive and violent behaviour, such that the applicant would not be able to deal with the public in the context of his vocation in a calm and reasonable manner.  The applicant's assertion that he had never had a complaint made against him by a member of the public during the course of his employment history was not contested at the hearing, and his character referees speak highly of him and his abilities to deal with difficult situations.  This was also the oral evidence of his current employer, Mr Diamantis.

4. The applicant relied on eight character references.  Seven of the character references have been written by those who have worked with the applicant within his vocation and all speak highly of his character, his ability, and his relationship and dealings with customers.  In particular, the Tribunal gives weight to the character reference and oral evidence of Mr Diamantis, being a dealer principal of a reputable dealership and who, with full knowledge of the applicant's history and record, speaks very highly of the applicant and his character.  The Tribunal does not accept the submissions of the respondent to the effect that it is in Mr Diamantis' own commercial interests to give such evidence.  In the Tribunal's view, Mr Diamantis was a credible witness and the Tribunal accepts his evidence as being honestly held.  The Tribunal also gives some weight to the character references from Mr Phillip McLardy, dealer principal of Osborne Park Volkswagen, who has known the applicant for 12 months, and that of Mr Brendan Hede, wholesale buyer for Subaru Osborne Park, who has known the applicant for over five years, both of whom provided positive character references for the applicant with some knowledge, by implication, of the applicant's criminal history.

5. The Tribunal accepted the applicant's evidence that he had insight into his misconduct and his desire to 'turn his life around'.  The applicant was seen by the Tribunal as genuinely remorseful.

6. It is also relevant that the applicant appears to have a stable home environment and the continued support from his family.  The applicant's home life and responsibilities have, in recent years, improved significantly in that he has recently purchased a family home with his partner and has achieved joint custody of his four­year­old son from a previous relationship.

The applicant's pending charges

1. The Tribunal considers that the pending charges are relevant to its deliberations, but they should be seen in the context of all other evidence and in relation to the particular vocational licence in question.  The Tribunal notes that the pending weapons charge is being defended by the applicant.  In addition, the Tribunal accepts the submission of the applicant that the circumstances surrounding each of the pending charges could be regarded as exceptional and do not relate to the applicant's vocation.  In relation to the weapons charge, the circumstances seemingly arose in the context of the applicant's brother being seriously assaulted in a nightclub.  In relation to the CCC Charges, the applicant failed to disclose information to the CCC in circumstances where he feared for his own and his family's safety and was therefore under considerable duress.  The Tribunal therefore accepts the applicant's submission that, in the circumstances, those pending charges should be given little weight in the context of a determination as to whether the applicant is of good character and is a fit and proper person in order to hold a yard manager's licence.

The applicant's honesty

1. The Tribunal will now turn to deal with the issue of honesty and whether the matters submitted by the respondent are such that they must result in a finding that the applicant is not of good character or a fit and proper person. 

2. In relation to the submission that the applicant did not disclose the CCC Charges on his Application, the Tribunal does not accept that this evidences the dishonesty of the applicant.  The applicant gave evidence at the hearing that he had never heard of the CCC before being summoned to give evidence, and that he did not appreciate that he had an obligation to disclose those pending charges when completing his Application.  The Tribunal accepts the applicant's evidence that he was under the mistaken belief that all that was required by him was to disclose 'police' charges, and that he believed that he had met that obligation by attaching his NPC to the Application.  It would have been prudent for the applicant to have asked the respondent whether that information was required.  However, the Tribunal accepts the evidence of the applicant that the Application was completed in haste, which may explain why this further enquiry was not made.

3. The respondent submitted that the varying versions of events provided by the applicant to Ms Bam, in their telephone conversations in respect of the then pending assault charge, also evidences the propensity of the applicant not to be entirely forthcoming in his dealings with the respondent.  The applicant conceded in oral evidence that he chose not to disclose to Ms Bam, in his initial telephone conversation with her on 4 July 2012, the fact that his brother was involved in the incident.  The Tribunal accepts that the applicant was providing information to Ms Bam in difficult circumstances and accepts the applicant's evidence that he felt a degree of discomfort in disclosing details in relation to charges which were yet to be tried.  The respondent submitted that the applicant fully understood his rights not to say anything at all in respect of the circumstances of the pending charge.  The Tribunal does not agree.  In the Tribunal's view, the applicant would have felt that he was under some pressure to give an explanation to the respondent rather than be seen to be refusing to give any information at all.

1. Clearly, the applicant was not forthcoming to the respondent in his original version of the events leading up to the assault charge by omitting to disclose the involvement of his brother.  Whilst the Tribunal accepts that this omission may have been partly motivated by the applicant feeling uncomfortable in discussing criminal matters which were then pending, it does not entirely explain the applicant's behaviour.  The respondent submits that the applicant was attempting to minimise the severity of the circumstances of the assault.  However, in the Tribunal's view, it would have been more favourable to the applicant to explain the circumstances of the assault by way of defending his brother who, the applicant believed at the time, was under assault by three people, rather than the version of events the applicant initially provided, that he was defending an attempt to steal his motor vehicle.  The Tribunal therefore does not accept that the omission was made in order to advance the applicant's own interests.  The Tribunal also does not accept that this omission itself evidences a propensity on the part of the applicant to act in a dishonest, fraudulent or unscrupulous manner, such that he could not be trusted by the public in transactions of the nature which occur in his particular vocation.  The Tribunal found the applicant to be genuinely remorseful of this behaviour and accepts his evidence that he understands his mistakes in this regard.

2. The respondent also relied upon the cultivation conviction as further evidence of the alleged lack of honesty of the applicant in that he misled the Court by pleading guilty to the charge when, in fact, the cannabis plant belonged to a friend of his who was on parole.  The applicant gave evidence that he pleaded guilty to the offence because he believed that he was morally guilty, given that the plant was under his control.  We do not accept this.  It is more likely that the applicant acted out of some misguided loyalty.  The Tribunal does not condone such an action, which is a serious departure from what is required when pleading to a charge.  However, we do not consider that this conduct means that the applicant has a propensity for dishonesty, such that it establishes a risk to the public in dealings with the applicant within the context of the motor dealer industry.  In the Tribunal's view, this conduct does not invite the conclusion that the applicant is, or would be, dishonest, unscrupulous or fraudulent in his motor vehicle transactions with members of the public.

3. Further, in relation to the particular issue of honesty, the respondent also relies upon the charges that the applicant lied to the CCC in relation to whether he was present at the fight at the motorplex.  It is not in contention between the parties that the applicant did initially provide false information to the CCC in this regard, but he subsequently provided a statement and admitted to his presence.  The applicant gave evidence that he initially lied because he was fearful for his safety and his family's safety due to the possibility of retaliation from the outlawed motorcycle clubs if he were to give evidence to the CCC.  When the applicant subsequently gave that evidence, he did so after temporarily relocating his partner in order to protect her safety.  In the Tribunal's view, this incident of dishonesty has been satisfactorily explained and, again, is completely unrelated and out of context with the duties that the applicant undertakes as a yard manager.  In the Tribunal's view, it does not show a propensity for dishonesty, or fraudulent or unscrupulous behaviour in financial dealings or dealings with the public within his particular vocation.

4. In relation to the pending weapons charge, the respondent submits that this is yet another example of the applicant's alleged dishonesty.  Ms Bam's evidence was that, during a telephone conversation with the applicant on 10 July 2012, the applicant informed her that, during the incident at the Saint nightclub, he had said the words 'back up or I’ll bloody stab you' to one of the doormen.  This assertion has now been denied by the applicant.  The parties accept that Ms Bam holds the belief that this was what was said to her.  Ms Bam was not called for the purposes of cross­examination, but the Tribunal accepts, as the applicant did at the hearing, that Ms Bam would simply have stood by her evidence that that is what she believed the applicant told her during that telephone conversation.  The applicant gave credible oral evidence at the hearing that he did not make the statement attributed to him by Ms Bam.  Without in any way suggesting that Ms Bam was anything but mistaken, we prefer the evidence of the applicant.  The statement in question is inconsistent with the charge made against him and would have been a statement which he would have known would reflect adversely against him.  In addition, the Tribunal notes that none of the witness statements given by those present at the time of the incident refer to the applicant making that statement or a similar statement.  It may have been that something similar to those words were said by the applicant to Ms Bam during the telephone conversation along the lines as recollected by the applicant in para 10 of Exhibit 3.  However, the Tribunal finds that Ms Bam's recollection of those words is inaccurate and therefore does not accept the submission that the applicant has changed his story or misled the respondent in this regard.

5. The Tribunal therefore considers that there is no basis to find that the applicant has a propensity to be dishonest, unscrupulous or fraudulent, such that he cannot be found to be a person of good character or a fit and proper person in the context of his particular vocation.  In the Tribunal's view, the public is not at risk of being dealt with in an unscrupulous or fraudulent manner in transactions occurring as part of the applicant's duties as a licensed yard manager in the motor dealer industry.

The issue of good repute

1. In relation to the matter of whether the applicant is of good repute, the Tribunal does not accept the submissions of the respondent that the appropriate test is whether a reasonable member of the public would consider the applicant to be a person of good repute, given the number and serious nature of the applicant's past convictions, news media reports of his alleged association with an outlawed motor cycle club and the pending CCC Charges.  What is important is how the applicant is regarded by people who know him.

2. The applicant, as noted earlier in these reasons, has filed and relied upon eight character references and, although some of those references do not refer to the applicant's prior convictions and pending charges, a number of them do and they all speak of the applicant being of good repute.  Therefore, the Tribunal does not accept the submission of the respondent that the applicant is not a person of good repute.

The applicant's knowledge and ability

1. Lastly, the respondent submitted that the Tribunal should find that the applicant does not have the ability and knowledge to perform the duties required of him as a licensed yard manager.  The Tribunal does not accept this submission, as it is based on two brief periods of time during which the applicant performed yard manager duties whilst not being licensed, although he held the mistaken belief that he was licensed.  The applicant gave evidence in this regard to explain why he held that belief, and the Tribunal accepts that evidence.

Conclusion

1. Taking all of those considerations above into account, the Tribunal has reached the view that, notwithstanding the prior convictions, pending charges, alleged incidences of dishonesty by the applicant, and the two periods of time within which the applicant continued in employment as a yard manager and was unlicensed, the applicant is a person of good character and repute, a fit and proper person to hold a motor vehicle yard manager's licence and he fully understands his duties under the licensing scheme of the MVD Act.

2. The respondent submitted that, if the Tribunal was to uphold the applicant's application, the licence ought to be granted subject to conditions.  The parties had agreed in advance what those conditions might be, and the Tribunal accepts that those handed up by the parties at the hearing are appropriate.

Orders

1. The Tribunal makes the following orders:

   1.The application is upheld.

   2.The decision of the Commissioner for Consumer Protection dated 17 July 2012 refusing the applicant's application to renew his yard manager's licence is set aside.

   3.The Commissioner for Consumer Protection, provided that she is satisfied of the other matters set out in s 16(1) of the Motor Vehicle Dealers Act 1973 (WA), is to renew the applicant's licence in accordance with these reasons and with the following conditions:

   1)The holder of the licence shall notify the Commissioner for Consumer Protection, in writing, within seven days of being:

   (a)charged with any offence in any State or Territory of Australia and the particulars of the charge; or

   (b)convicted of any offence and the particulars of it; or

   (c)the subject of any finding or report by the Corruption and Crime Commission or any similar body and the particulars of the finding or report.

   2)The holder of the licence shall provide to the Commissioner for Consumer Protection, in the time and manner directed by the Commissioner for Consumer Protection, such further information as the Commissioner for Consumer Protection may require in respect of any matter notified to the Commissioner for Consumer Protection under clause 1.

   3)The holder of the licence shall provide to the Commissioner for Consumer Protection a National Police Certificate (NPC) within seven days of each anniversary of the date on which the licence is issued.

   4)The NPC provided pursuant to clause 3 shall not have been issued more than one month prior to the date on which the NPC is provided to the Commissioner for Consumer Protection.

   5)The holder of the licence shall provide to the Commissioner for Consumer Protection, in the time and manner directed by the Commissioner for Consumer Protection, such further information as the Commissioner for Consumer Protection may require in respect of any matter appearing on the NPC provided pursuant to clause 3 and not already notified to the Commissioner for Consumer Protection under clause 1.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE T SHARP, DEPUTY PRESIDENT