COMMISSIONER FOR CONSUMER PROTECTION and BLAND
[2022] WASAT 111
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: MOTOR VEHICLE REPAIRERS ACT 2003 (WA)
CITATION: COMMISSIONER FOR CONSUMER PROTECTION and BLAND [2022] WASAT 111
MEMBER: MS A KING, MEMBER
MR R POVEY, MEMBER
MR A TOWNSEND, SESSIONAL MEMBER
HEARD: 13 DECEMBER 2022
DELIVERED : 19 DECEMBER 2022
FILE NO/S: VR 104 of 2021
BETWEEN: COMMISSIONER FOR CONSUMER PROTECTION
Applicant
AND
SHAUN DEREK COLIN BLAND
Respondent
Catchwords:
Vocational regulation - Engaged in undisputed conduct amounting to contraventions of Motor Vehicle Repairers Act 2003 (WA) - Costs
Legislation:
Fair Trading Act 2010 (WA)
Motor Vehicle Repairers Act 2003 (WA), s 3(1), s 41, s 48, s 48(1), s 65(1)(c), s 65(2), s 66, s 68(1), s 68(1)(a), s 68(1)(a)(ii), Sch 1, cl 1(a), cl 3, cl 3(a), cl 5
State Administrative Tribunal Act 2004 (WA), s 87, s 87(2)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | RS King |
| Respondent | : | Non-attendance |
Solicitors:
| Applicant | : | Commissioner for Consumer Protection |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Legal Practitioners Complaints Committee and Cullen [2005] WASAT 211
Real Estate and Business Agents Supervisory Board and Morgan Realty Pty Ltd [2011] WASAT 131
Western Australian Planning Commission and Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This proceeding relates to an application made under s 66 of the Motor Vehicle Repairers Act 2003 (WA) (MVR Act) by the Commissioner for Consumer Protection (applicant or Commissioner) which enables the Commissioner to lodge an application to the Tribunal alleging that there is proper cause for the Tribunal to make orders under s 68(1) of the MVR Act seeking disciplinary orders.
The respondent in this proceeding is Shaun Derek Colin Bland (respondent or Mr Bland).
The Commissioner in the application sets out the allegations against Mr Bland and provides particulars. The Commissioner alleges that proper cause for disciplinary action exists pursuant to s 66 of the MVR Act as Mr Bland has breached s 48(1) and s 68(1)(a)(ii) of the MVR Act. Four specific allegations are made by the Commissioner as follows:
1)allegations 1 and 3 allege that Mr Bland breached s 68(1)(a)(ii) of the MVR Act by contravening or failing to comply with a condition attached to a business licence or certificate; and
2)allegations 2 and 4 allege that Mr Bland has breached s 48(1) of the MVR Act by changing his place of residence and failing to notify the Commissioner of the new place of residence not later than 14 days after the change occurs.
The Tribunal firstly sets out the procedural history and the applicable statutory framework and then will set out the two issues that arise for determination in this proceeding relating to the four allegations. Finally, the Tribunal will consider the submissions and the evidence and make findings in relation to the two issues and make an order in relation to any applicable penalty.
The applicant in its submissions filed on 21 July 2022, included an application that the respondent pay the applicant's costs of the proceeding. The Tribunal will set out its decision in relation to the costs application after making its findings in relation to the substantive application.
Procedural history
Following receipt of the application, the President of the Tribunal, Her Honour Justice Pritchard (President), on 21 February 2022 made orders referring this matter to mediation.
On 11 March 2022, Tribunal Member De Villiers made orders which, among other orders, discontinued the mediation due to nonattendance by Mr Bland and ordered that the respondent is to inform the applicant by no later than 18 March 2022 if he consents to the amended draft Minute of Proposed Consent Orders (Minute).
On 12 April 2022 Tribunal Member De Villiers discontinued the mediating and referred the matter for a directions hearing.
On 3 May 2022, the President made orders adjourning a scheduled directions hearing to permit the applicant to personally serve Mr Bland with a Minute to resolve the matter.
On 31 May 2022, the President made further orders providing for the exchange of Statements of Issues, Facts and Contentions (SIFC) and documents relevant to this proceeding. These orders also required the applicant to continue its efforts to locate Mr Bland and, if possible, personally serve him with any Minute and also to serve these orders on Mr Bland by email at XXXXX XXXXX @XXX.XXX.
Notwithstanding the possibility of this matter being resolved by consent, no consent orders have been signed by Mr Bland, and further Mr Bland has not filed a responsive SIFC or any written submissions with the Tribunal, despite the Tribunal's orders of 31 May 2022 for him to do so.
On 18 November 2022, orders were made by the President, listing this matter to final hearing.
The applicant confirmed that a process server was utilised to personally serve the respondent. Mr Bland did not attend the final hearing. As a result of the non-attendance by the respondent, the Tribunal has before it only material filed and submissions made by the applicant.
Applicable statutory framework
Section 65(1)(c) of Pt 6 of the MVR Act applies to the respondent because the respondent is the holder of a Motor Vehicle Repairer's Certificate (Certificate) that was granted to him on 12 April 2019.
'Certificate' is defined in s 3(1) of the MVR Act as a repairer's certificate or a provisional repairer's certificate.
Pursuant to s 66 of the MVR Act, the Commissioner may allege to the Tribunal that there is proper cause for the Tribunal to make, under s 68(1) of the MVR Act, for one or more of the orders in Sch 1 of the MVR Act (Disciplinary Orders) in respect of a person to whom Pt 6 applies.
The allegations made by the Commissioner in this case arise from alleged failures by the respondent under s 68(1)(a) and s 48(1) of the MVR Act.
Section 68 relates to 'Making of disciplinary orders under Schedule 1' and s 68(1)(a) states as follows:
Subject to section 65(2), in a proceeding commenced by an allegation under section 66 the State Administrative Tribunal may make one or more of the orders set out in Schedule 1 in respect of a person to whom this Part applies if the person has been found by the State Administrative Tribunal —
(a)to have contravened or failed to comply with —
(i)a provision of this Act; or
(ii)a business licence or certificate or a condition or restriction attached to a business licence or certificate;
Section 48 relates to 'Change of address to be notified by certificate holder' and s 48(1) states as follows:
The holder of a certificate who changes his or her place of residence must give to the Commissioner notice of the address of the new place of residence not later than 14 days after the change occurs.
Penalty: $1 500.
Section 68(1)(a) operates subject to s 65(2) of the MVR Act which requires that an order cannot be made in respect of a person unless two things have first occurred. The first, an inquiry has been conducted and the second, the person has been given an opportunity to show cause why the order should not be made.
In relation to s 65(2) in this case, the applicant submits, and we accept in the absence of any contrary submissions or evidence from the respondent, this section has been satisfied by the investigations undertaken by the applicant into the respondent's conduct that occurred between April and November 2021, and by the procedures at the Tribunal, and in particular the Tribunal's orders made by the President on 31 May 2021 (which we have referred to earlier), which have given the respondent opportunity to show cause why orders should not be made.
Issues for determination by the Tribunal
The first issue to be determined by the Tribunal in this proceeding is:
1)Whether the respondent breached s 68(1)(a) of the MVR Act on two occasions by failing to comply with a condition of his Certificate that required him provide to the applicant a National Police Certificate (NPC) within one month before:
a)25 March 2020; and
b)25 March 2021.
The second issue arising in this proceeding is:
2)Whether the respondent breached s 48(1) of the MVR Act on two occasions when he changed his place of residency (address) on or before 28 October 2019 and 18 December 2020 and failed to notify the applicant within 14 days after the change occurred on or before:
a)11 November 2019; and
b)1 January 2021.
The evidence
The applicant referred to its bundle of documents lodged with the Tribunal and its supplementary bundle of documents lodged on 12 December 2022 marked Exhibit 1 and Exhibit 2 respectively.
NPC
In relation to the first issue, Mr King on behalf of the applicant submitted that the applicant by letter dated 25 March 2019 was advised that the Commissioner notified of the proposal to issue a Certificate with the condition imposed on it as follows:
Within one month before 25 March 2020 and 25 March 2021, the holder must provide the Commissioner with an original National Police Certificate that is less than 3 months old.
By email dated 28 March 2019 the respondent acknowledged the letter thanking the applicant and added 'I will not stuff up the opportunity you have given me to further and better my career it means a lot'.[1]
[1] Exhibit 2, page 5.
These following facts are supported by the documents, filed by the applicant, in Exhibit 1, at pages 30-61.
a)On 18 February 2019, the respondent applied for a Certificate for light vehicle work pursuant to s 41 of the MVR Act; Exhibit 1 - Hearing Book, ABR 1, pages 3238.
b)The respondent listed 3/46 Pedder Way, Parmelia (first address) as his address for correspondence with the applicant on his application; Exhibit 1, ABR 1 - page 32.
c)On 25 March 2019, the applicant sent a preliminary decision letter to the respondent proposing a condition be placed on the Certificate; Exhibit 1, ABR 2 - pages 39-40.
d)On 12 April 2019, the applicant granted the Certificate subject to the condition that the respondent must, within one month before 25 March 2020 and 25 March 2021, provide the applicant with an original NPC that is less than three months old; Exhibit 1, ABR 3, ABR 4 and ABR 5 - pages 41-44.
e)On 19 February 2020, the applicant reminded the respondent in writing that, by 25 March 2020, he must submit a NPC to the applicant; Exhibit 1, ABR 6 - pages 45-46.
f)The respondent failed to do so within one month before 25 March 2020, or at all; Exhibit 1, ABR 7, Witness Statement of Greg Bond, para 22, page 50.
g)On 23 February 2021, the applicant reminded the respondent in writing that by 25 March 2021 he must submit a NPC to the applicant; Exhibit 1, ABR 8 - pages 51-52.
h)The respondent failed to do so within one month before 25 March 2021, or at all Exhibit 1, ABR 7 - Witness Statement of Greg Bond, para 22, page 50.
The respondent has filed no submissions or contrary evidence in response to the allegations made by the applicant in relation to Issue 1.
Change of addresses
As to the second issue, relating to failures to notify of changes of address, the applicant submitted that the following facts are relevant, and these facts are supported by the applicant's documents in Exhibit 1:
a)On or about 28 October 2019, the respondent moved from the first address to Unit 1, 97 Cooper Street, Mandurah (second address); Exhibit 1, ABR 9 Witness Statement of Jarrad Edward Spicer, para 5 page 53; ABR 10, page 55-56; ABR 11, page 57 and ABR 12, pages 58-59.
b)The respondent failed to notify the applicant on or before 11 November 2019 (within 14 days after the change of address occurred), or at all; Exhibit 1, ABR 13 Witness Statement of Greg Bond, paras 4 and 5, pages 60-61.
c)On or about 18 December 2020, the respondent moved from the second address to 55 Norman Street, St James; Exhibit 1, ABR 9 Witness Statement of Jarrad Edward Spicer, para 5, page 53; ABR 10, pages 55-56; ABR 11 pages 57 and ABR 12, pages 5859.
d)The respondent failed to notify the applicant on or before 1 January 2021 (within 14 days after the change of address occurred), or at all; Exhibit 1, ABR 13, Witness Statement of Greg Bond paras 4 and 5, pages 60-61.
The respondent has filed no submissions or contrary evidence in response to the allegations made by the applicant in relation to Issue 2.
The Tribunal is satisfied that the above facts are supported by the documents marked Exhibit 1 and 2 filed by the applicant.
Having considered the submissions, evidence, and facts in relation to Issue 1 and Issue 2, we will now deliver our findings.
Findings of the Tribunal
Issue one - failure to comply with conditions - NPC
In accordance with the evidence of the Commissioner contained in Exhibit 1 and 2 and the facts as detailed above which remain undisputed, in respect of the first issue:
Whether the respondent breached s 68(1)(a) of the MVR Act on two occasions by failing to comply with a condition of his Certificate that required him provide to the applicant a NPC within one month before:
a)25 March 2020; and
b)25 March 2021.
the Tribunal is satisfied that the respondent has breached s 68(1)(a) of the MVR Act for the following reasons:
a)the Tribunal finds that the respondent is a holder of a Certificate dated 12 April 2019 within the meaning of s 3(1) of the MVR Act and the respondent is a person within the meaning of s 65(1)(c);
b)the Tribunal has already found that it is satisfied that an inquiry has been conducted and the respondent was given an opportunity to show cause why orders should not be made; and
c)the Tribunal is satisfied that the respondent was given an opportunity to comply with a condition on his Certificate to provide a NPC within one month before
i)25 March 2020; and
ii)25 March 2021 and failed to do so within the time allowed, there being no record of the respondent having provided the Commissioner with his NPC for 2020 and 2021.
Accordingly, the Tribunal is satisfied that that the respondent has contravened or failed to comply with the MVR Act.
Issue 2 - change of address
As to the second issue:
Has the respondent breached s 48(1) of the MVR Act on two occasions when he changed his place of residency on or before 28 October 2019 and 18 December 2020 and failed to notify the applicant within 14 days after the change of address occurred on or before:
a)11 November 2019; and
b)1 January 2021.
the Tribunal finds, on the evidence, that the respondent has breached s 48(1) of the MVR Act for the following reasons:
a)the Tribunal has examined the signed statement of Jarrad Edward Spencer dated 24 June 2022 (Exhibit 1, ABR 9 pages 53-54) whereby he records that on 1 October 2021 he served a s 69 Notice of the Fair Trading Act 2010 (WA) on the Department of Transport (Department) requesting an address history of the respondent. He subsequently received a spreadsheet from the Department (Exhibit 1, ABR 11, page 57) containing the address history which demonstrates that the respondent changed residential addresses on 28 October 2019 and 18 December 2020; He also served a notice on WA Police (WAPOL) requesting the respondent's known current and past addresses. He attaches the WAPOL response (Exhibit 1, ABR12, pages 58-59) which is entirely consistent with the information provided by the Department;
b)Mr Greg Bond in a signed statement dated 17 November 2021 asserted that the applicant was not advised of the change of addresses, and they have no record of it; Exhibit 1, ABR 13, para 4, page 60; and
c)the Tribunal accepts the evidence provided and is satisfied that the respondent has contravened or failed to comply with the MRV Act in failing to advise of a change of address as required by s 48(1) of the MVR Act on two occasions.
Submissions and findings as to penalty
The Commissioner submits that in the circumstances pursuant to s 66 of the MVR Act that there is proper cause for the Tribunal to make, under s 68(1)(a), one or more disciplinary orders as set out in Sch 1 of the MVR Act.
The Commissioner is seeking orders that the respondent be fined an amount not exceeding $1,500 in respect of each allegation and that the respondent be reprimanded.
Schedule 1 cl 3 of the MVR Act provides that the Tribunal may make an order that a person pay a penalty not exceeding $1,500 in the case of a person who is the holder of a certificate.
Despite being given the opportunity to do so, the respondent has not filed any submissions in respect to penalty.
The Commissioner is seeking a global penalty in the sum of $3,000 pursuant to Sch 1 cl 3(a) of the MVR Act and a reprimand pursuant to Sch 1 cl 5 of the MVR Act.
When considering penalty, it is important to remember that the purpose of a penalty in disciplinary proceedings is to protect the public by maintaining the integrity of a profession or vocation.[2] Disciplinary proceedings are not intended to be punitive even though the disciplinary action may involve significant penalty to the person disciplined.
[2] Legal Practitioners Complaints Committee and Cullen [2005] WASAT 211 at [33].
The applicant submits the Tribunal should impose a penalty that sends a message to the industry and deters other certificate holders from committing similar offences.
The applicant submits the Tribunal should consider:
a)the respondent's failure to submit a NPC and to advise the applicant of his changed address was, in each case, repeated;
b)in addition to alerting the respondent of the condition when the Certificate was first granted on 25 March 2019, the applicant sent at least two letters reminding the respondent of the condition;
c)on 19 February 2020 the applicant received an automatic reply to an email advising that the email failed to deliver to [email protected]. The original was sent by post;
d)by letter dated 7 July 2021, the applicant advised the respondent that it had begun an investigation into the alleged contraventions and received no response; and
e)although the respondent has acknowledged the proceeding in telephone and email contact with the applicant, the respondent has not filed any response, nor produced any material that could be assessed in mitigation of penalty.
The applicant has also advised the Tribunal it is not aware of any previous disciplinary sanctions against the respondent in the context of holding the Certificate, and we take this into account in considering the penalty in this case.
The respondent's failure on at least two occasions to file his NPC since the granting of the respondent's Certificate, shows a disregard for his obligations as a holder of a certificate under the MVR Act. This is in addition to his failure to notify of changes of addresses on at least two occasions.
In those circumstances the Tribunal is persuaded that it is appropriate to impose a fine in respect of breaches of the MVA Act and a reprimand pursuant to Sch 1 cl 5 of the MVA Act.
As to the quantum of the penalty, the Tribunal agrees with the submissions made by the applicant in respect of allegations 1 to 4 and is satisfied that a global penalty in the sum of $3,000, pursuant to Sch 1 c1 3(a) of the MVR Act is appropriate.
The Tribunal is also satisfied that a reprimand is appropriate to serve as specific and general deterrence, pursuant to Sch 1 cl 5 of the MVA Act.
Costs
The applicant seeks that the respondent pay the Commissioner's costs of this proceeding, pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), being:
a)$1,500 for the drafting of the applicant's application, SIFC and submissions; and
b)$176 for process service fees.
Under the SAT Act the general position is that each party bear its own costs, although there is power to award costs under s 87 of the SAT Act. This discretion is, in general terms, utilised where a party has behaved unreasonably in the conduct of its case so as to lead the other party to incur unnecessary costs.
No written submissions have been made by the Commissioner as to why costs should in this instance be made in favour of the Commissioner. At the hearing Mr King, on behalf of the applicant, submitted that the respondent had per telephone agreed to come to their office to sign a minute of consent orders. An appointment was made however he failed to attend. No further communications occurred subsequently between the applicant and the respondent. The solicitor on behalf of the applicant at the time of the hearing, produced a file note in support which was accepted into evidence and marked Exhibit 3.
In all of the circumstances of this case, where the respondent has repeatedly failed to engage in this proceeding, the Tribunal accepts that he has behaved unreasonably and this has ultimately incurred costs to the Commissioner, that in our view, should have been avoided.
The Tribunal notes that notwithstanding the possibility of this matter being resolved by consent, Mr Bland has failed to attend, and no consent orders have been signed by Mr Bland. Mr Bland has also not filed a responsive SIFC or any written submissions with the Tribunal, despite the Tribunal's orders of 31 May 2022 for him to do so. The applicant has incurred costs in relation to those matters.
The Tribunal takes into consideration, circumstances where a vocational regulatory body successfully brings an application,[3] however notes there is no presumption of costs under which the successful party is prima facie entitled to costs.[4]
[3] Real Estate and Business Agents Supervisory Board and Morgan Realty Pty Ltd [2011] WASAT 131 at [8].
[4] Western Australian Planning Commission and Questdale Holdings Pty Ltd [2016] WASCA 32 at [50].
In this case, having considered all of the evidence the Tribunal is persuaded that in the circumstances it is appropriate for the respondent to pay the Commissioner's costs in the amount of $1,676.
Orders
The Tribunal orders:
1.A penalty of $3,000 is imposed on Mr Shaun Derek Colin Bland, pursuant to Sch 1, cl 3(a) of the Motor Vehicle Repairers Act 2003 (WA), and this penalty is to be paid within 30 days.
2.Mr Shaun Derek Colin Bland be reprimanded pursuant to Sch 1 cl 5 of the Motor Vehicle Repairers Act 2003 (WA).
3.Pursuant to s 87(2) State Administrative Tribunal Act 2004 (WA), Mr Shaun Derek Colin Bland is to pay the applicant's costs in this proceeding, being $1,676, and this amount is to be paid within 30 days or such longer period as may be agreed by the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS A King, MEMBER
20 DECEMBER 2022
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