Commissioner for Consumer Affairs v Tripodi

[2006] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division: Application)

COMMISSIONER FOR CONSUMER AFFAIRS v TRIPODI

[2006] SADC 66

Judgment of His Honour Judge Barrett, Assessor Cheney and Assessor MacDonald

15 June 2006

ADMINISTRATIVE LAW

SECOND-HAND VEHICLE DEALERS ACT

Disciplinary proceedings brought against a second-hand motor vehicle dealer - convicted in Magistrates Court for carrying on a business without being licensed - two counts of failing to pay refunds to customers - failing to transmit an extended warranty - exposing thirteen cars with deficiencies under the Road Traffic Act - sentenced for two counts of larceny - not a fit and proper person to be licensed by reason of five convictions and three estreatments of bail. Orders made disqualifying defendant permanently from being licensed under the Act (s.31(1)(e)), from being employed or engaged as a dealer (s.31(1)(f)) and from being a director or having an interest in a body corporate that is a dealer.

Second-Hand Vehicle Dealers Act 1995; Business Names Act 1996; Road Traffic Act 1961, referred to.

COMMISSIONER FOR CONSUMER AFFAIRS v TRIPODI
[2006] SADC 66

1. On 7 June 2006 the Tribunal considered submissions from counsel for the Commissioner for Consumer Affairs and eight exhibits tendered by her in support of a complaint alleging that there is proper cause for disciplinary action against the defendant. The defendant was not present, but the Tribunal is satisfied on the balance of probabilities that he has received sufficient notice of the hearing of the application, the complainant that has made and of the materials that have been tendered in support of it. We concluded that pursuant to s 27(c) of the Second-Hand Vehicle Dealers Act 1995 there was proper cause for disciplinary action against the defendant.

2. The defendant was notified by the Registry that we would proceed today to impose penalty, or more correctly to impose orders consequent upon the finding and as provided for in s 31 of the Act.

3. In summary the particulars relied upon by the complainant and found proved by us are as follows:

   1.On 20 October 2004 the defendant was convicted by Mr Harris SM of the offences of carrying on business as a second-hand vehicle dealer without being licensed under the Act to do so and carrying on business under a business name that did not consist of the defendant’s name and was not registered under the Business Names Act 1996. 

   His Honour recorded convictions on each count and fined the defendant $8,500 and $1,500 respectively for the offences.

   2.In respect of the sale of a car to a Mr O’Bryan, the defendant paid a refund due to Mr O’Bryan by a cheque which was dishonoured.  No subsequent payment was made by the defendant and a Magistrate made an order compensating Mr O’Bryan out of the Second-Hand Vehicles Compensation Fund.  The dishonoured cheque was dated 4 October 2001 and the Magistrate’s order was made on 12 August 2002.

   3.The defendant failed to transmit an extended warranty in respect of a car purchased by a Mr Carrigan.  As a result Mr Carrigan was not covered for about $1,800 worth of expenses in rectifying faults with the car.

   4.The defendant failed to reimburse a $1,000 deposit to a Mr Baron when he was unable to obtain finance for the purchase of a car.  On 23 July 2004 a Magistrate authorised the payment of compensation in the sum of $1,089 to Mr Baron out of the Second-Hand Vehicles Compensation Fund. 

   5.The defendant exposed for sale 13 second-hand vehicles which had deficiencies within the meaning of s 160 of the Road Traffic Act 1961.

   6.The defendant has received penalties for two offences of larceny, one on 26 November 2003 in the Adelaide Magistrates Court and one on 29 May 1998 in the Port Adelaide Magistrates Court.  In those circumstances the defendant would not be entitled to be licensed as a dealer pursuant to s 9(1)(b)(ii) of the Act.

   7.The defendant is not a fit and proper person to be the holder of a licence contrary to s 9(1)(f) of the Act by virtue of the convictions particularised in point 6 above, the unlawful, and improper, negligent and unfair conduct particularised in point 5 and for convictions in the Magistrates Court as follows:  1) on 12 February 2005, refusing or failing to comply with a Court Order, and failing to furnish a taxation approved form, 3) on 18 June 2004, failing to furnish a taxation approved form, 4) offences for failing to truly answer on 22 April 2005 and 3 February 2004, and 5) on 11 April 2004, performing or exercising a function or power as an officer of a company while the company is being wound up in insolvency or by the Court. 

4. In addition the defendant was subject to estreatment of bail on three occasions in July 2003, May 2004 and June 2004.

5. In our view the conduct we have found proved is ample to justify making orders pursuant to, first, s 31(1)(e) of the Act, disqualifying the defendant from being licensed under the Act, second, s 31(1)(f), prohibiting the defendant from being employed or otherwise engaged in the business of a dealer, and third pursuant to s 31(1)(g), prohibiting the defendant from being a director or having an interest in a body corporate that is a dealer.  We have considered whether pursuant to s 31(2) we should make these orders for a specified period, including until further order, or whether we should make the orders permanently.  In our view the conduct is so serious and extensive that the only course sufficient to protect the public is to make the orders permanently pursuant to s 31(2)(a)(i).  We so order.

6. No order for costs is sought.

7. We direct that a copy of these reasons be served on the defendant.