COMMISSIONER FOR CONSUMER PROTECTION and ELMER
[2018] WASAT 16
•9 MARCH 2018
COMMISSIONER FOR CONSUMER PROTECTION and ELMER [2018] WASAT 16
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2018] WASAT 16 | |
| MOTOR VEHICLE REPAIRERS ACT 2003 (WA) | |||
| Case No: | VR:171/2017 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS D QUINLAN (MEMBER) MR T TOWNSEND (SESSIONAL MEMBER) | 9/03/18 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Respondent reprimanded Respondent disqualified from holding a motor vehicle repairer's certificate for a period of two years | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER FOR CONSUMER PROTECTION MATTHEW LAWRENCE ELMER |
Catchwords: | Repairer's certificate False or misleading information Failure to notifiy of offences Conduct rendering unfit to hold a certificate |
Legislation: | Criminal Code Compilation Act 1913 (WA), s 401(2) Motor Vehicle Repairers Act 2003 (WA), s 49(1), s 65(1)(c), s 66, s 68(1), s 68(1)(a)(i), s 68(1)(a)(ii), s 69, s 69(1), s 68(2)(a), Sch 1, cl 1(a), cl 5, Sch 2, cl 1 |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 Craig v The Medical Board of South Australia [2001] SASC 169 Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Land Valuers Licensing Board and Nevermann [2010] WASAT 38 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Profession Complaints Committee and A Legal Practitioner (S) [2013] WASAT 37 (S) Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) Legal Profession Complaints Committee v Lashansky [2007] WASC 211 Legal Profession Complaints Committee v Love [2014] WASC 389 Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179 Medical Board of Western Australia and Bham [2006] WASAT 190 Medical Board of Western Australia and Wright [2010] WASAT 48 Motor Vehicle Industry Board and Dawson [2006] WASAT 8 New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Hamman [1999] NSWCA 404 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Tavelli v Johnson (Unreported, WASC; Library No 960693, 25 November 1996) Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 |
Orders | 1. Mr Matthew Lawrence Elmer be reprimanded, pursuant to Sch 1, cl 5 of the Motor Vehicle Repairers Act 2003 (WA).,2. Mr Matthew Lawrence Elmer be disqualified from holding or obtaining a motor vehicle repairer's certificate for a period of two years from the date of this order pursuant to Sch 1, cl 1(a) and Sch 2, cl 1 of the Motor Vehicle Repairers Act 2003 (WA). |
Summary | This matter concerned an application made to the Tribunal by the Commissioner for Consumer Protection pursuant to s 66 of the Motor Vehicle Repairers Act 2003 (the Act).,The Commissioner alleged that under s 68(1) of the Act, there was proper cause for the Tribunal to make one or more of the disciplinary orders in Sch 1 of the Act, in relation to the conduct of Mr Mathew Lawrence Elmer, to whom Part 6 applied. ,Mr Elmer's alleged conduct included:,1) committing aggravated burglary;,2) disposing of items used to commit the aggravated burglary;,3) failing to inform the Commissioner in his application for a motor vehicle repairer's certificate (certificate) that he had been charged with aggravated burglary;,4) committing offences relating to the possession of a prohibited drug and possession of drug paraphernalia:,a) while holding a certificate;,b) while working at his workplace; and,c) in breach of the suspended imprisonment order imposed on him in respect of the aggravated burglary conviction;,5) failing to notify the Commissioner about the convictions; and,6) failing to provide a National Police Certificate to the Commissioner as required by the condition attached to his certificate and thereby failing to disclose his convictions for aggravated burglary, the drug offences and the breach of a suspended imprisonment order to the Commissioner.,Mr Elmer took no part in the proceedings.,The Tribunal concluded that it was appropriate that Mr Elmer be reprimanded. The Tribunal also determined that rather than imposing a fine, Mr Elmer should be disqualified from holding a repairer's certificate for a period of two years which reflects the seriousness of his conduct. A global penalty was imposed because the seriousness of Mr Elmer's offences subsumes the other breaches of the Act. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : MOTOR VEHICLE REPAIRERS ACT 2003 (WA) CITATION : COMMISSIONER FOR CONSUMER PROTECTION and ELMER [2018] WASAT 16 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS D QUINLAN (MEMBER)
MR T TOWNSEND (SESSIONAL MEMBER)
- Applicant
AND
MATTHEW LAWRENCE ELMER
Respondent
Catchwords:
Repairer's certificate - False or misleading information - Failure to notifiy of offences - Conduct rendering unfit to hold a certificate
Legislation:
Criminal Code Compilation Act 1913 (WA), s 401(2)
Motor Vehicle Repairers Act 2003 (WA), s 49(1), s 65(1)(c), s 66, s 68(1), s 68(1)(a)(i), s 68(1)(a)(ii), s 69, s 69(1), s 68(2)(a), Sch 1, cl 1(a), cl 5, Sch 2, cl 1
Result:
Respondent reprimanded
Respondent disqualified from holding a motor vehicle repairer's certificate for a period of two years
Summary of Tribunal's decision:
This matter concerned an application made to the Tribunal by the Commissioner for Consumer Protection pursuant to s 66 of the Motor Vehicle Repairers Act 2003 (the Act).
The Commissioner alleged that under s 68(1) of the Act, there was proper cause for the Tribunal to make one or more of the disciplinary orders in Sch 1 of the Act, in relation to the conduct of Mr Mathew Lawrence Elmer, to whom Part 6 applied.
Mr Elmer's alleged conduct included:
1) committing aggravated burglary;
2) disposing of items used to commit the aggravated burglary;
- 3) failing to inform the Commissioner in his application for a motor vehicle repairer's certificate (certificate) that he had been charged with aggravated burglary;
4) committing offences relating to the possession of a prohibited drug and possession of drug paraphernalia:
a) while holding a certificate;
b) while working at his workplace; and
- c) in breach of the suspended imprisonment order imposed on him in respect of the aggravated burglary conviction;
- 6) failing to provide a National Police Certificate to the Commissioner as required by the condition attached to his certificate and thereby failing to disclose his convictions for aggravated burglary, the drug offences and the breach of a suspended imprisonment order to the Commissioner.
The Tribunal concluded that it was appropriate that Mr Elmer be reprimanded. The Tribunal also determined that rather than imposing a fine, Mr Elmer should be disqualified from holding a repairer's certificate for a period of two years which reflects the seriousness of his conduct. A global penalty was imposed because the seriousness of Mr Elmer's offences subsumes the other breaches of the Act.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Department of Mines, Industry Regulation and Safety
Respondent : N/A
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v The Medical Board of South Australia [2001] SASC 169
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Johns v Law Society of New South Wales [1982] 2 NSWLR 1
Land Valuers Licensing Board and Nevermann [2010] WASAT 38
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Profession Complaints Committee and A Legal Practitioner (S) [2013] WASAT 37 (S)
Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)
Legal Profession Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179
Medical Board of Western Australia and Bham [2006] WASAT 190
Medical Board of Western Australia and Wright [2010] WASAT 48
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
New South Wales Bar Association v Evatt (1968) 117 CLR 177
New South Wales Bar Association v Hamman [1999] NSWCA 404
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Tavelli v Johnson (Unreported, WASC; Library No 960693, 25 November 1996)
Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308
Introduction
1 On 11 September 2017, the Commissioner for Consumer Protection (the Commissioner) made an application to the Tribunal pursuant to s 66 of the Motor Vehicle Repairers Act 2003 (the Act).
2 The Commissioner alleged that under s 68(1) of the Act, there was proper cause for the Tribunal to make one or more of the orders in Sch 1 of the Act (disciplinary orders) in relation to Mr Mathew Lawrence Elmer.
Procedural matters
3 On 29 September 2017, the Tribunal made orders requiring the Commissioner to file its statement of issues, facts and contentions by 10 October 2017. The Commissioner complied with those orders.
4 The Tribunal also ordered Mr Elmer to file his book of documents and response by 24 October 2017.
5 On 14 November 2017, the Tribunal ordered the Commissioner to file and serve written submissions by 28 November 2017. The Commissioner did so. Mr Elmer was ordered to file his submission by 12 December 2017.
6 The Tribunal ordered that the matter be determined on the documents.
7 Mr Elmer failed to comply with any orders and has taken no part in the proceedings.
8 The Tribunal has largely adopted the Commissioner's submissions in these reasons.
Orders sought
9 The Commissioner sought the following disciplinary orders:
2.1. [Mr Elmer] be reprimanded, pursuant to Schedule 1, clause 5 of the Act.
2.2. [Mr Elmer] pay a penalty not exceeding $1,500 pursuant to Schedule 1, clause 3(a) of the Act.
2.3. [Mr Elmer] be disqualified from holding or obtaining a motor vehicle repairer's certificate (Certificate) for a period specified in order or until further order of the Tribunal, pursuant to Schedule 1, clause 1(a) and Schedule 2, clause 1 of the Act.
The relevant legislation
10 Section 49(1) of the Act provides:
(1) A person must not in relation to an application to which this section applies give information orally or in writing that the person knows to be
(a) false or misleading in a material particular; or
(b) likely to deceive in a material way.
Penalty: $5 000.
(1) This Part applies to a person if that person is
…
(c) the holder of a certificate.
The Commissioner may allege to the State Administrative Tribunal that there is proper cause for the Tribunal to make under section 68(1) one or more of the orders set out in Schedule 1 in respect of a person to whom this Part applies.
13 Section 68 (1) of the Act provides:
(1) 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;
or
(b) to have done or omitted to do any thing, or engaged in any conduct, where in the opinion of the State Administrative Tribunal the act, omission or conduct renders the person unfit
(i) to be a licensee, or one of the licensees, or the holder of a certificate; or
(ii) to be concerned in the management or conduct of a body corporate that is a licensee or one of the licensee[.]
(1) In this section
relevant offence means an offence against any law of this State or another State, the Commonwealth or a Territory for which the maximum penalty on conviction is
(a) a fine of $8 000 or more; or
(b) imprisonment for more than 2 years or for an indeterminate period.
(2) A person to whom this Part applies must
(a) notify the Commissioner within 7 days after he or she becomes aware that he or she has been convicted of a relevant offence; and
(b) provide the Commissioner with such information about the offence and the conviction as the Commissioner may require.
Penalty: $1 500.
1. An order disqualifying a person from holding or obtaining, whether solely or jointly
(a) a business licence or certificate; or
(b) a certificate for any particular class of repair work,
whether or not at the time when the order is made the person is the holder of a business licence or certificate.
2. An order disqualifying a person from being concerned in the management or conduct of a body corporate that is the holder, or a joint holder, of a business licence, whether or not at the time when the order is made the person is so concerned.
3. Subject to Schedule 2 clause 2, an order that a person pay a penalty not exceeding
(a) $1 500 in the case of a person who is or was the holder of a certificate; or
(b) $5 000 in the case of a person who is or was a licensee or one of joint licensees.
4. An order
(a) attaching conditions or restrictions to a business licence or certificate; or
(b) amending a condition or restriction attached to a business licence or certificate.
5. An order reprimanding or cautioning a person.
16 Schedule 2, clause 1 of the Act relevantly provides:
An order under Schedule 1 item 1 or 2 may be made to have effect
(a) for a period specified in the order; or
(b) until a further order is made by the State Administrative Tribunal or a court.
Onus and standard
17 The Commissioner bears the onus of proof. It is to the civil, not criminal standard, but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
18 By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the respondent is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
Repairer's certificate
19 Mr Elmer was granted a repairer's certificate on 9 October 2014 numbered MR12722 (Document 6 of Applicant's Index to Bundle of Documents (the Commissioner's Document(s)). Under s 65(1)(c) of the Act, Part 6 applied to Mr Elmer.
The grounds of the application
20 The grounds of the application against Mr Elmer were as follows:
1. The Applicant alleges there is proper cause for the Tribunal to make (under section 68 of the Motor Vehicle Repairers Act 2003 (Act)) one or more of the orders set out in Schedule 1 of the Act against the Respondent on the following grounds.
2. At all material times the Respondent was the holder of a motor vehicle repairer's certificate granted on 9 October 2014, numbered MR12722 (certificate) and as such is a person to whom Part 6 of the Act applies.
3. The Respondent knowingly gave false or misleading information in a material particular in an application for a motor vehicle repairer's certificate contrary to section 49(1) of the Act.
(a) On 16 May 2013, the Respondent was charged with Aggravated Burglary with Intent in a Place (s.401(1)(a) Criminal Code).
(b) On 17 May 2013, the Respondent was granted bail until the final hearing of the charge on 2 December 2014. The terms of his bail included daily reporting to the Kalgoorlie Police Station.
(c) On 1 September 2014, the Respondent made a written application to the Department of Commerce (now Department of Mines, Industry Regulation and Safety) for a certificate.
(d) In section 2(b) of the application form, the Respondent was asked:
Have you or are you: aware of any legal proceedings pending against you for an offence, including proceedings by way of appeal or review?
- to which the Respondent answered 'No'.
(e) The Respondent signed the application form, directly below the part of the form that reads as follows:
I declare that the information and documents given with or in support of this application are true and correct. I understand that providing a false or misleading statement is an offence.
(f) The Respondent signed the application form when due to the circumstances described at sub-paragraphs (a) and (b) of this Ground, he knew that his answer 'no' to question 2(b) was false.
4. The Respondent failed to notify the Commissioner for Consumer Protection (Commissioner) within 7 days (after becoming aware that he had been convicted of a relevant offence) with information about the offence and the conviction contrary to section 69(2)(a) of the Act.
(a) On 2 December 2014, the Respondent appeared before a judge at the Perth District Court and was convicted of the aggravated burglary charge.
(b) Aggravated burglary is a 'relevant offence'.
(c) At no stage did the Respondent notify the Commissioner about that offence.
5. The Respondent failed to notify the Commissioner (within 7 days after becoming aware that he had been convicted of a relevant offence) with information about the offence and the conviction contrary to section 69(2)(a) of the Act.
(a) On or about 2 April 2015:
i. While executing a search warrant at the Respondent's workplace, police located drugs in the shirt pocket of the shirt that the Respondent was wearing and a glass smoking instrument with traces of methylamphetamine which was found on top of the daily workshop diary.
ii. The Respondent was charged with:
a. 1 x possession of a prohibited drug (s.6(2) Misuse of Drugs Act 1981 (MD Act)).
b. 1 x possession of drug paraphernalia in or on which there was a prohibited drug (s.7(B)(6) of the MD Act).
(c) The drug convictions resulted in the Respondent breaching a suspended imprisonment order imposed on him in relation to the aggravated burglary (breach of SIO matter).
(d) On 20 July 2015, the Respondent appeared before a magistrate at the Kalgoorlie Magistrates Court who committed the breach of SIO matter to the District Court.
(e) On 23 November 2015, the Respondent appeared before a judge at the Perth District Court who dealt with the SIO matter. The circumstances of the drug convictions (including the possession drug paraphernalia conviction) were discussed.
(f) Possession drug paraphernalia is a 'relevant offence'.
(g) At no stage did the Respondent notify the Commissioner about that offence.
6. The Respondent contravened or failed to comply with a condition or restriction attached to a certificate contrary to section 68(1)(a)(ii) of the Act.
(a) The Respondent's certificate included the following condition:
Must provide an up to date National Police Certificate in October 2016.
(b) At no stage did the Respondent provide the Commissioner with that document.
7. The Respondent engaged in conduct rendering him unfit to be the holder of a certificate, pursuant to section 68(1)(b)(i) of the Act.
(a) The Applicant relies upon the matters set out in Grounds 3 to 6 above.
(b) The Respondent committed the drug offences (described at Ground 5 above) at his workplace.
(c) Inherent in the Respondent's misconduct was concealing from relevant persons/officers information that if disclosed may have adversely affected his prospects of been granted a certificate or continuing to hold it. In that regard, the Respondent did not disclose any information to the Commissioner about:
i. the aggravated burglary charge (Ground 3 above);
ii. the aggravated burglary conviction (Ground 4 above);
iii. the possession drug paraphernalia conviction (Ground 5 above); and
iv. his record of convictions up to and including October 2016 (Ground 6 above).
(d) Other misconduct on the part of the Respondent demonstrating his tendency to evade the consequences of his previous misconduct and/or unfitness (generally) is as follows:
i. Assisting co-offender(s) to dispose a weapon that was used in the aggravated burglary.
ii. Breaching the suspended imprisonment order imposed on him in relation to the aggravated burglary conviction.
Knowingly giving false information in an application
21 On 1 September 2014, Mr Elmer made an application to the Department of Commerce (Commissioner's Document 5).
22 Mr Elmer marked 'No' to a question in the application asking him if he was aware of any legal proceedings pending against him for an offence (Commissioner's Document 5; Commissioner's Bundle of Documents (BOD) page 37).
23 Mr Elmer signed the application declaring the information contained in it was correct (Commissioner's Document 5; BOD page 40)
24 Mr Elmer signed the application when he knew that his answer 'No' (referred to above) was incorrect, in that:
1) On 16 May 2013, Mr Elmer was arrested at his place of work and subsequently charged with aggravated burglary and commit offence in dwelling (s 401(2)(a) of the Criminal Code Compilation Act 1913 (WA)) (aggravated burglary) (Commissioner's Documentؘ2); and
2) From 17 May 2013 until (at least) 28 November 2014, thebail conditions imposed on Mr Elmer for the aggravated burglary charge included a requirement for his daily attendance at a police station. Mr Elmer complied with that requirement (Commissioner's Documents 3 and 4).
25 Commissioner's Document 3 is a copy of the Bail Undertaking signed by Mr Elmer. Commissioner's Document 4 is the record of Mr Elmer's signatures reporting to the Kalgoorlie Police Station in accordance with his bail conditions.
26 The Tribunal is satisfied that Mr Elmer knew that he had been charged with the offences as set out above.
27 The Tribunal is satisfied that Mr Elmer breached s 49(1) of the Act in giving information in his application for a repairer's certificate that he knew was false or misleading. Accordingly, pursuant to s 68(1)(a)(i) of the Act, the Tribunal may make disciplinary orders against Mr Elmer.
Paragraphs 4 and 5 of the grounds of the application
Failure to notify Commissioner within seven days after becoming aware that he had been convicted of a relevant offence
28 Mr Elmer was granted a repairer's certificate on 9 October 2014.
29 Mr Elmer was convicted of two relevant offences, namely:
1) aggravated burglary on 2 December 2014 (Commissioner's Documents 1 and 8; BOD pages 55 to60); and
2) possession of drug paraphernalia 'in or on which there was a prohibited drug' (s 7(B)(6) of the Misuse of Drugs Act 1981) on 20 July 2015 (Commissioner's Documents 1 and 10; BOD page 66).
(the Convictions)
30 Mr Elmer did not notify the Commissioner of the Convictions. The Tribunal is satisfied that Mr Elmer failed to notify the Commissioner of the Convictions within seven days and that he breached s 69(2)(a) and s 49(1) of the Act (Documents 1, 15 and 16; BOD pages 91 and 92). Accordingly the Tribunal may make disciplinary orders against Mr Elmer.
Paragraph 6 of the grounds of the application
Failure to comply with conditions on the Certificate
31 Mr Elmer's certificate included the following condition:
Must provide an up to date National Police Certificate in October 2016
(Commissioner's Document 7)
32 Mr Elmer did not provide a National Police Certificate within the required timeframe or at all (Commissioner's Document 17; BOD pages 96 to 98). Had he provided a National Police Certificate, the Certificate would have disclosed the Convictions for aggravated burglary and possession of drug paraphernalia
33 The Tribunal is satisfied that Mr Elmer failed to comply with the condition attached to his certificate.
34 Pursuant to s 68(1)(a)(ii) of the Act, the Tribunal may make disciplinary orders against Mr Elmer.
Paragraph 7 of the grounds of the application
Unfit to hold a certificate
35 Pursuant to s 68(1)(b)(i) of the Act, the Tribunal may make disciplinary orders if it finds that a certificate holder has done, or omitted to do, anything, or engaged in any conduct which in the opinion of the Tribunal renders the person unfit.
Legal principles and the authorities
36 The term, 'unfit', is not materially different to 'fit and proper': Land Valuers Licensing Board and Nevermann [2010] WASAT 38.
37 Newnes JA, in Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35, noted that the expression 'fit and proper' takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.
38 In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, the Court stated:
… 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[.]
39 In Mr Elmer's case, honesty is the Tribunal's principal concern. A customer must be confident that the work has in fact been carried out.
40 In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J (at 76) remarked about the meaning of 'fit and proper person':
… 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.
41 In Mr Elmer's case, his criminal activities raise serious concerns about his moral integrity.
42 A person's previous conduct or convictions can be taken into account in order to decide whether to disqualify that person from undertaking activities pursuant to that person's licence (or other authorisation): Motor Vehicle Industry Board and Dawson [2006] WASAT 8 (Dawson). In Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179 at [73], Newnes JA stated:
In determining whether a person is a fit and proper person to hold a licence, conduct will be relevant if, although it did not occur in the ordinary course of carrying on the occupation, it is sufficiently closely connected to the occupation or it manifests the presence or absence of qualities which are incompatible with, or essential for, the carrying on the occupation. (Citations omitted)
43 In Dawson, the Tribunal observed at [25]:
… It is well recognised in this context that the power should be exercised for the purpose of protecting the public and the maintenance of appropriate professional standards, although its exercise may have a punitive effect: see generally Rich v Australian Securities and Investments Commission [2004] HCA 42 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [34] and [35] and the authorities referred to therein.
44 In LJW and Real Estate and Business Agents Supervisory Board [2010] WASAT 11, the Tribunal relevantly stated at [27] as follows:
A criminal conviction may well call into question whether a person is a 'fit and proper person' to be licensed to work in a particular industry or profession. Misconduct in the course of work in the industry or profession will be directly relevant to fitness, but misconduct outside the course of work may, depending on the nature of the conduct and the circumstances, indicate that a person is not fit and proper to work in a particular industry or profession: Mavaddat v Real Estate and Business Agents Supervisory Board [2009] WASCA 179 (Mavaddat) at [71] [73], (Newnes JA (McLure JA and Pullin JA agreeing)). By way of example, the personal misconduct may demonstrate qualities incompatible with the qualities essential to working in the industry or profession, or the absence of those qualities: see A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; Mavaddat at [71] [73], (Newnes JA (McLure JA and Pullin JA agreeing)). Alternatively the conduct may be sufficiently serious as to represent a course of disregard for the law so as to require the conclusion that the person is not a fit and proper person: Coulthard v Henneker [2003] WASCA 187 at [56] (Barker J).
45 Mr Elmer's criminal conduct as set out below is sufficiently serious as to represent a course of conduct that indicates disregard for the law.
46 In Tavelli v Johnson (Unreported, WASC; Library No 960693, 25 November 1996), (Tavelli), Wheeler J identified some of the factors indicating the more serious or greater relevance of prior convictions when considering whether or not a person is fit to hold a licence. The factors Her Honour identified are:
a) The offences occurred in the course of or relate to the carrying out of the occupation;
b) The offences involve dishonesty, broadly understood;
c) The offences occurred while the person was the holder of a licence under the Act; and
d) The offences 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.
Mr Elmer's conduct
47 Mr Elmer's conduct in relation to the aggravated burglary conviction is found in the Chief Judge of the District Court's sentencing remarks. Mr Elmer was sentenced with two other parties. The Tribunal notes that the maximum sentence for aggravated burglary is 20 years. His Honour stated:
[Mr Elmer] was armed with a dangerous weapon, that [he] knew or ought to have known that there was another person in the place and that [he was] in company
…
Neither of you entered the victim's home. You were both waiting in the car outside, having gone in that car with Mr Sartori. Mr Sartori committed the offences and you left with him in that car after he had done so. Theoffences were not the plan of either of you; they were the plan of Mr Sartori.
You, Mr Elmer, were a passenger in the car. You did not know that Mr Sartori intended to steal guns. You knew that Mr Sartori was armed with a machete and that he used a beanie as a balaclava to disguise himself. You understood that Mr Sartori's plan was to collect a debt from the victim and that the machete was to be used to scare people inside the house to give him money.
..
Mr Elmer, your knowledge that Mr Sartori was armed with a machete and that he used a beanie as a balaclava to disguise himself, both of which Mr Gould did not know, shows that in that respect you had greater knowledge than Mr Gould of the dangers of the burglary.
I conclude that both of your offending was serious [.]
(Commissioner's Document 8)
48 Mr Elmer's conduct in relation to the drug conviction is found in the Statement of Material Facts (Commissioner's Document 9) and in District Court Judge Goetze's sentencing remarks:
You're now 22 and a half. But the police must have had some reason to execute a search warrant and they found you with .1 of a gram which is a fairly small amount.
…
Possession of methylamphetamine is a serious drug and as is the drug related paraphernalia. The chief judge read through your personal circumstances at pages 60 to 61 or his transcript and what I have regard to now is that - I think I might have just said you were 22. You were 20 at the time of the burglary, you have now 24. Apart from the breaching offence there hasn't been any further offending[.]
(Commissioner's Document 12)
49 Mr Elmer's conduct to which the legal principles apply included:
1) committing aggravated burglary;
2) disposing of items used to commit the aggravated burglary (for example, the machete used by a co-offender to injure an occupant);
3) failing to inform the Commissioner in his application that he had been charged with aggravated burglary;
4) committing offences relating to the possession of a prohibited drug and possession of drug paraphernalia (the drug offences):
a) while holding a certificate;
b) while working at his workplace; and
c) in breach of the suspended imprisonment order imposed on himin respect of the aggravated burglary conviction;
5) failing to notify the Commissioner about the Convictions; and
6) failing to provide a National Police Certificate to the Commissioner as required by the condition attached to his certificate and thereby failing to disclose his convictions for aggravated burglary, the drug offences and the breach of a suspended imprisonment order to the Commissioner.
Applying the legal principles to Mr Elmer's conduct
1. The offences are otherwise so serious … as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
50 The Commissioner submitted that Mr Elmer was not a fit and proper to hold a certificate in that:
a) aggravated burglary is a serious offence. Mr Elmer knew that a co-accused was armed and intended to use a machete to obtain property from an occupant in the house that was burgled which was used by the co-offender to inflict a wound on the occupant. The circumstances of the aggravated burglary reflect particularly adversely on the character of Mr Elmer;
b) Mr Elmer's conduct reflected ongoing disregard for the law, in that it displayed a pattern of withholding or concealing information from lawful authority (being the Commissioner and/or Police in this case) to evade the adverse consequences of his actions. The disclosure of the information that Mr Elmer withheld or concealed from the Commissioner was likely to adversely affect his chances of obtaining or continuing to hold a certificate; and
c) Mr Elmer further demonstrated ongoing disregard for the law by committing the drug offences during the period of the suspended imprisonment order imposed on him for aggravated burglary.
51 The Tribunal accepts the Commissioner's submissions. Aggravated burglary is a particularly serious offence.
2. The offences occurred in the course of ... carrying out of the occupation and while the person was the holder of a licence under the Act.
52 The Commissioner submitted that:
a) the drug offences occurred while Mr Elmer was a holder of a certificate and in the course of his work. It raises the possibility that Mr Elmer could have been under the influence of drugs while working. This conduct may potentially cause harm to consumers (who entrust repair work to Mr Elmer) and to the wider public. This conduct calls into question whether Mr Elmer can be entrusted with the sort of work which the certificate entails.
53 Mr Elmer did not commit the aggravated burglary in the course of carrying out his occupation. However, as the Commissioner notes, the fact that the drugs relating to the drug offences were found at Mr Elmer's place of work is of concern. The Tribunal agrees with the Commissioner's submission.
3. The offences involve dishonesty, broadly understood.
54 The Commissioner submitted that Mr Elmer's conduct was dishonest because he knowingly failed to disclose to the Commissioner his convictions and breach of a suspended imprisonment order.
55 A failure to disclose information relevant to the holding of a certificate is dishonest. It is particularly so when providing the information is likely to lead to a consideration of whether the person is fit to hold a certificate.
56 Although aggravated burglary does not involve dishonesty in a broad sense, it does involve taking something that does not belong to the offender.
Conclusion
57 The Commissioner therefore submits that:
1) Mr Elmer's conduct renders him unfit to hold acertificate;
2) disciplinary orders are necessary to protect the public and to maintain professional standards; and
3) Mr Elmer is not a person who can be safely accredited to the public.
58 The Tribunal agrees with the Commissioner's submissions.
Otherwise a fit and proper person?
59 In Tavelli at [8] Wheeler J noted that notwithstanding previous convictions, a number of factors may indicate that a person is of good character and a fit and proper person. Those factors include:
1) where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes, particularly if this is demonstrated by the person's actions as well as their words.
2) the passage of a substantial period of time since the commission of the offences, with no intervening misconduct.
3) any change in the person's circumstances since the offences were committed which indicates that the factors giving rise to the offences have been eliminated.
4) the 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, particularly those references given in full knowledge of the fact of the commission of the offences.
60 Mr Elmer has not responded to the application nor complied with any directions and as such, he has not addressed these factors. It is therefore unnecessary for the Tribunal to address these factors. There is no basis to conclude that Mr Elmer is otherwise a fit and proper person (Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 9 to 10)
Penalty
61 In determining an appropriate penalty, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:
1) Any need to protect the public against further misconduct by the motor vehicle repairer (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Law Society of New South Wales vForeman (1994) 34 NSWLR 408 (Foreman) at 440C; New South Wales Bar Association vHamman [1999] NSWCA 404 (Hamman) at [77]).
2) The need to protect the public through general deterrence of other motor vehicle repairers from similar conduct (Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]).
3) The need to protect the public and maintain public confidence in the trade by reinforcing high standards and denouncing transgressions and thereby articulating the high standards expected of the trade (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and [79]), such that, even where there may be no need to deter a motor vehicle repairer from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval (Craig v The Medical Board of South Australia [2001] SASC 169 at [64]; Johnson at [103]).
4) In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow motor vehicle repairers can place reliance on the word of the motor vehicle repairer, that is, it can be assured that the works have in fact been carried out. (Johnson at [109]; Foreman at 445B 445G).
5) Whether the motor vehicle repairer has breached any:
a) Act;
b) Regulations;
c) Guidelines or Code of Conduct, issued by the relevant professional body; and
d) whether the motor vehicle repairer has done so knowingly.
6) Whether the motor vehicle repairer's conduct demonstrated incompetence, and if so, to what level.
7) Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E - 442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63).
8) The motor vehicle repairer's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
9) Whether or not the motor vehicle repairer understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the repairer, since a motor vehicle repairer who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 at [31]-[52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Legal Profession Complaints Committee v Love [2014] WASC 389 at [9]).
10) The desirability of making available to the public any special skills possessed by the motor vehicle repairer.
11) The motor vehicle repairer's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of motor vehicle repairers and in the maintenance of proper standards of motor vehicle repairers (Love at [59]); Paridis v Settlement Agents Supervisory Board[2007] WASCA 97; (2007) 33 WAR 361 at [30(5)]).
12) The Tribunal may consider any other matters relevant to the motor vehicle repairer's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (Legal Profession Complaints Committee and A Legal Practitioner (S) [2013] WASAT 37 (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the trade are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
Analysis of factors
Factor 1 Is there a need to protect the public against further misconduct by Mr Elmer?
62 Mr Elmer's offences establish a need to protect the public against further misconduct by him. He not only committed a serious offence but then breached his suspended imprisonment order by the drug offences.
Factor 2 Is there a need to protect the public through general deterrence of other motor vehicle repairers?
63 The penalty needs to act as a general deterrent to other motor vehicle repairers.
Factor 3 Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
64 Aggravated burglary and possession of drugs, particularly in a repairer's workplace requires an expression of the Tribunal's disapproval.
Factor 4 Dishonesty
65 Mr Elmer's conduct involved dishonesty.
Factor 5 Breach of an Act, Regulations, Guidelines or Code of Conduct
66 Mr Elmer knowingly breached the sections of the Act set out above.
Factor 6 Incompetence
67 Incompetence is not relevant to this matter.
Factor 7 Was the incident isolated?
68 Mr Elmer's conduct whilst not extensive was not isolated. The Tribunal is not confident of his worthiness for the future.
Factor 8 Mr Elmer's disciplinary history
69 Mr Elmer has no relevant disciplinary history.
Factor 9 Whether or not Mr Elmer understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by Mr Elmer
70 Mr Elmer did not take part in the proceedings and therefore there is no basis for the Tribunal to form a conclusion.
Factor 10 Are there any special skills possessed by Mr Elmer?
71 Mr Elmer has no special skills.
Factor 11 Mr Elmer's personal circumstances
72 There is no evidence on which the Tribunal can form any conclusion as to this factor.
Factor 12 Are there any other matters related to Mr Elmer's fitness to practise?
73 There are no other related matters.
Conclusion
74 It is appropriate that Mr Elmer be reprimanded.
75 The Tribunal has determined that rather than imposing a fine, Mr Elmer should be disqualified from holding a repairer's certificate for a period of two years. The loss of Mr Elmer's repairer's certificate will have a significant effect on his potential to earn income. A period of disqualification of two years reflects the seriousness of his conduct.
76 It is appropriate that a global penalty be imposed because the seriousness of Mr Elmer's offences which lead to a conclusion that he is unfit subsumes the other breaches of the Act.
Orders
1. Mr Matthew Lawrence Elmer be reprimanded, pursuant to Sch 1, cl 5 of the Motor Vehicle Repairers Act 2003 (WA).
2. Mr Matthew Lawrence Elmer be disqualified from holding or obtaining a motor vehicle repairer's certificate for a period of two years from the date of this order pursuant to Sch 1, cl 1(a) and Sch 2, cl 1 of the Motor Vehicle Repairers Act 2003 (WA).
I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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