COMMISSIONER FOR CONSUMER PROTECTION and ROZARIO
[2017] WASAT 76
•24 MAY 2017
COMMISSIONER FOR CONSUMER PROTECTION and ROZARIO [2017] WASAT 76
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 76 | |
| MOTOR VEHICLE REPAIRERS ACT 2003 (WA) | |||
| Case No: | VR:53/2017 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS P LE MIERE (MEMBER) | 24/05/17 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Respondent contravened Motor Vehicle Repairers Act 2003 (WA) by not notifying Commissioner for Consumer Protection he had been convicted of seven relevant offences and did not comply with condition on his Motor Vehicle Repairer's Certificate by failing to provide a National Police Clearance certificate to Commissioner on three occasions | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER FOR CONSUMER PROTECTION EAN JACOB ROZARIO |
Catchwords: | Engaged in conduct that renders him unfit to be holder of certificate |
Legislation: | Bail Act 1982 (WA), s 51(1), s 51(2) Criminal Code Act Compilation Act 1913 (WA), s 70A, s 378, s 444(1)(b) Motor Vehicle Repairers Act 2003 (WA), s 3, s 3(1), s 43(1), s 65(1), s 65(1)(c), s 65(2), s 68, s 68(1), s 69, s 69(1), s 69(2), Sch 1, cl 1(a), cl 3, cl 3(a), cl 5 State Administrative Tribunal Act 2004 (WA), s 60(2), s 87, s 87(2) |
Case References: | Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 |
Orders | 1. The respondent has engaged in conduct that renders him unfit to be the holder of the Motor Vehicle Repairer's Certificate and pursuant to Sch 1 cl 1(a) of the Motor Vehicle Repairers Act 2003 (WA) is disqualified from holding or obtaining a Motor Vehicle Repairer's Certificate.,2. Pursuant to Sch 1 cl 3 of the Motor Vehicle Repairers Act 2003 (WA), the respondent is reprimanded. |
Summary | The respondent was found to have engaged in conduct that rendered him unfit to be the holder of a Motor Vehicle Repairer's Certificate, because he failed to comply with the condition on his Motor Vehicle Repairer's Certificate that he provide the Commissioner for Consumer Protection with a National Police Certificate and further failed to notify the Commissioner of his convictions of seven relevant offences between 25 January 2013 and 17 February 2016. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : MOTOR VEHICLE REPAIRERS ACT 2003 (WA) CITATION : COMMISSIONER FOR CONSUMER PROTECTION and ROZARIO [2017] WASAT 76 MEMBER : MS P LE MIERE (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 MAY 2017 FILE NO/S : VR 53 of 2017 BETWEEN : COMMISSIONER FOR CONSUMER PROTECTION
- Applicant
AND
EAN JACOB ROZARIO
Respondent
Catchwords:
Engaged in conduct that renders him unfit to be holder of certificate
Legislation:
Bail Act 1982 (WA), s 51(1), s 51(2)
Criminal Code Act Compilation Act 1913 (WA), s 70A, s 378, s 444(1)(b)
Motor Vehicle Repairers Act 2003 (WA), s 3, s 3(1), s 43(1), s 65(1), s 65(1)(c), s 65(2), s 68, s 68(1), s 69, s 69(1), s 69(2), Sch 1, cl 1(a), cl 3, cl 3(a), cl 5
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87, s 87(2)
Result:
Respondent contravened Motor Vehicle Repairers Act 2003 (WA) by not notifying Commissioner for Consumer Protection he had been convicted of seven relevant offences and did not comply with condition on his Motor Vehicle Repairer's Certificate by failing to provide a National Police Clearance certificate to Commissioner on three occasions
Summary of Tribunal's decision:
The respondent was found to have engaged in conduct that rendered him unfit to be the holder of a Motor Vehicle Repairer's Certificate, because he failed to comply with the condition on his Motor Vehicle Repairer's Certificate that he provide the Commissioner for Consumer Protection with a National Police Certificate and further failed to notify the Commissioner of his convictions of seven relevant offences between 25 January 2013 and 17 February 2016.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
The application
1 The Commissioner for Consumer Protection (Commissioner) lodged an application in the Tribunal dated 21 March 2017 against Mr Ean Jacob Rozario (application), seeking orders that:
1) Mr Ean Jacob Rozario (respondent) be disqualified from holding or obtaining a Motor Vehicle Repairer's Certificate (certificate) pursuant to Sch 1 cl 1(a) of the Motor Vehicle Repairers Act 2003 (WA) (Act).
2) The respondent pay a penalty not exceeding $1,500 for each breach, pursuant to Sch 1 cl 3(a) of the Act.
3) The respondent be reprimanded pursuant to Sch 1 cl 5 of the Act.
4) The respondent pay the Commissioner's costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
2 The application was served by ordinary post on the respondent on 21 March 2017 at his last known address. No response to the application has been received by the Tribunal.
Proceedings in the Tribunal
3 The application was listed for a directions hearing on 4 April 2017, at which the Commissioner was ordered to file an affidavit in support of the application and, subject to any further order, that the matter be dealt with on the documents pursuant to s 60(2) of the SAT Act.
4 In considering the matter, the Tribunal had before it:
a) the application;
b) an affidavit of Angelo Barbaro sworn 11 April 2017 together with Annexures AB1 AB22; and
c) the Commissioner's outline of submissions.
5 The respondent did not file any documents.
Issues
6 The relevant issues to be determined by the Tribunal are whether the respondent has:
1) contravened or failed to comply with the Act; or
2) done or omitted to do anything or engaged in any conduct that renders him unfit to be a holder of a certificate?
The facts
The certificate
7 By letter dated 16 November 2011, the respondent was notified of the granting of his certificate No MR10368 (Respondent's Certificate), subject to conditions, and that s 69 of the Act required him to notify the Commissioner within seven days of being convicted of a relevant offence.
8 The Respondent's Certificate was subject to the following conditions:
a) any glazing work carried out by the respondent was restricted to fixed glass secured by rubber seals only; and
b) within one month before 16 November each year, the respondent was to provide the Commissioner with an original National Police Certificate (NPC) that is less than three months old.
9 The Respondent's Certificate was valid until 15 November 2016.
Previous failures to provide a NPC
10 By letters dated 1 November 2012, 14 November 2012 and 18 December 2012, the respondent was advised that he was required to submit to the Commissioner an original or certified copy of his NPC on or before 16 November 2012, being 12 months from the issue date of the certificate.
11 The respondent did not provide his NPC to the Commissioner on or before 16 November 2012.
12 On 18 December 2012, the respondent advised a licensing officer of the Department of Consumer Affairs (Department) by telephone that he had moved to a new address. That day, the licensing officer wrote to the respondent requesting written confirmation of his new address and advising that he was in breach of the Respondent's Certificate conditions as the Department had not received any NPC.
13 On 15 January 2013, the respondent telephoned the Department and requested a duplicate of the Respondent's Certificate. On the same day, the respondent attended the Department's office and provided written confirmation of his new (current) address. He was given a duplicate of the Respondent's Certificate.
14 On 13 March 2013, a technical compliance officer (Compliance Officer) at the Automotive Marine and Trading Hours Branch (Branch) visited the respondent's address and spoke to the respondent's parents. (The respondent's address is also his parent's address). That day, the Compliance Officer had a telephone discussion with the respondent and reminded the respondent of the requirement to provide his NPC.
15 On 30 April 2013, the Compliance Officer left a message for the respondent to call him back.
16 On 14 May 2013, the Compliance Officer telephoned the respondent and advised him that he still had not provided the Commissioner with his NPC.
17 On 22 May 2013, the respondent sent a text message to the Compliance Officer advising that he would be sending a receipt for his NPC application. The Department did not receive a receipt or any further contact from the respondent.
18 On 4 June 2013, Angelo Barbaro, the Manager of the Branch, telephoned the respondent to remind him that he needed to provide his NPC. The respondent advised that he would not be supplying one.
19 On 8 July 2013, the Compliance Officer wrote to the respondent advising that the Branch was investigating allegations that he had failed to comply with a condition on the Respondent's Certificate. The Department did not receive a response.
20 On 16 August 2013, the condition on the Respondent's Certificate was amended for clarity to read 'within one month before 16 November each year the holder must provide the Commissioner with an original National Police Certificate that is less than three months old'.
21 The respondent did not provide the Commissioner with his NPC one month before 16 November 2013.
22 On 26 November 2013, the Commissioner commenced proceedings in the Tribunal alleging:
a) the respondent had contravened s 69 of the Act by failing to notify the Commissioner within seven days, or at all, after he became aware that he was convicted of the offences on 25 January 2013; and
b) that the respondent had twice failed to comply with conditions attached to the Respondent's Certificatebecause he had not provided his NPC to the Commissioner before 16 November 2012 or before 16 November 2013.
23 On 16 April 2014 the following orders were made by the Tribunal:
a) Pursuant to Sch 1 cl 5 of the Act, the respondent was reprimanded.
b) Pursuant to Sch 1 cl 3 of the Act, the respondent was to pay a penalty of $1,500 by no later than 16 May 2014.
Relevant offences committed
24 The respondent has been convicted of seven relevant offences since January 2013.
25 A relevant offence is 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 fine of $8,000 or more; or imprisonment for more than two years or for an indeterminate period: s 69(1) of the Act.
26 On 25 January 2013, the respondent was convicted of wilfully and unlawfully destroying and damaging property contrary to s 444(1)(b) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code).
27 On 25 January 2013, the respondent was convicted of a breach of bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA) (Bail Act).
28 On 11 September 2015, the respondent was convicted of breach of bail (failed to appear soon after), contrary to s 51(2) of the Bail Act.
29 On 23 September 2015, the respondent was convicted of stealing a motor vehicle, contrary to s 378 of the Criminal Code.
30 On 17 February 2016, the respondent was convicted of two separate counts of without lawful excuse trespassing on a place, contrary to s 70A of the Criminal Code.
31 On 17 February 2016, the respondent was convicted of stealing a motor vehicle, contrary to s 378 of the Criminal Code.
32 The Department has received no record of the respondent notifying the Commissioner of his conviction of the above relevant offences within seven days of conviction, or at all.
The legislation
33 The Commissioner filed an application in the Tribunal on 21 March 2017 seeking orders pursuant to Sch 1 cl 1(a), cl 3(a) and cl 5 of the Act; and that the respondent pay the applicant's cost pursuant to s 87 of the SAT Act.
34 Section 65(1) of the Act confers jurisdiction on the Tribunal to make orders in respect of the holder of a certificate: s 3 of the Act.
35 Section 65(2) of the Act requires that:
…
(a) an inquiry has been conducted; and
(b) the person has been given an opportunity to show cause why the order should not be made.
(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 any thing, or engaged in any conduct, were in the opinion of the State Administrative Tribunal the act, omission or conduct renders the person unfit [to be the holder of the certificate][.]
(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.
The Tribunal's consideration
38 For the Commissioner to succeed in obtaining an order from the Tribunal pursuant to s 68 and Sch 1 of the Act, the Tribunal must be satisfied that:
1) the respondent is a holder of a certificate within the meaning of s 3(1) of the Act in terms of s 65(1)(c);
2) an inquiry was conducted and the respondent was given an opportunity to show cause why the orders should not be made: s 65(2) of the Act;
3) the respondent has contravened or failed to comply with the Act; or
4) has done or omitted to do anything or engaged in any conduct that renders him unfit to be a holder of a certificate.
39 The Commissioner filed an affidavit of the Manager of the Branch.
40 The Manager of the Branch deposed to and provided documentary evidence in support of:
1) being a designated investigator;
2) the respondent being the holder of the Respondent's Certificate granted on 16 November 2011;
3) by letter dated 4 July 2016, the respondent being informed the Department was conducting an investigation into an allegation:
a) that he had failed to notify the Commissioner of relevant offences for which he had been convicted in breach of s 69 of the Act; and
b) had not provided the Commissioner on or before 16 November 2015, with an original NPC inbreach of the condition attached to the Respondent's Certificate;
4) the Respondent's Certificate being subject to the condition pursuant to s 43(1) of the Act which was amended on 16 August 2013 to be 'within one month before 16 November each year, the holder must provide the Commissioner with an original National Police Certificate that is less than three months old';
5) in accordance with the Respondent's Certificate, the respondent being required to provide the NPC on threeoccasions, within one month before:
a) 16 November 2014;
b) 16 November 2015; and
c) 16 November 2016; and
6) there being no record of the respondent having provided the Commissioner with his NPC for 2014, 2015 and 2016.
41 The Commissioner submitted a copy of the respondent's criminal record obtained on 26 October 2016 together with a Statement of Material Facts for the offences disclosing that the respondent has been convicted of seven relevant offences since January 2013.
42 The Commissioner has no record of the respondent notifying the Commissioner of his conviction of these relevant offences within seven days of conviction, or at all.
Conclusion
Is the respondent a holder of a certificate and was he given an opportunity to respond to the Commissioner's allegations?
43 On the Commissioner's evidence submitted by way of an affidavit of the Manager of the Branch, the Tribunal is satisfied that:
a) the respondent is the holder of a certificate granted on 16 November 2011; and
b) that the respondent was notified that the Department was conducting an investigation and was given the opportunity to show cause why the orders sought by the Commissioner should not be made.
Has the respondent contravened or failed to comply with the Act?
44 Attached to the affidavit of the Manager of the Branch, is the respondent's Certified Copy of History for Court Criminal and Traffic, which discloses that the respondent has been convicted of seven offences that are relevant offences as defined in s 69(1) of the Act. The Commissioner has no record of the respondent notifying the Commissioner that he has been convicted of these offences.
45 The Tribunal is satisfied that the respondent has contravened or failed to comply with s 69(2) the Act.
Does the respondent's contravention of the Act render him unfit to be a holder of a certificate?
46 Newnes JA in Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 at [25] [30] summarises the principles relevant to whether a person is 'fit and proper' and noted that it takes its meaning from its context, from the activities in which the person is or will be engaged in and the end to be served by those activities.
47 The respondent has not complied with the condition of the Respondent's Certificate in relation to filing his NPC and/or notifying the applicant of his conviction of relevant offences at any time since the granting of the Respondent's Certificate.
48 The respondent's criminal record includes convictions for some serious offences and with respect to one offence, a sentence of a suspended term of imprisonment was imposed.
49 The respondent's failure to file his NPC since the granting of the Respondent's Certificate, shows a consistent disregard for his obligations as a holder of a certificate under the Act. It is particularly concerning that despite having had disciplinary proceedings taken against him in 2013, he has not remediated his conduct and continues to display a lack of remorse or insight into his conduct.
50 The Tribunal is satisfied that the respondent's actions and continued omissions render him unfit to hold a certificate under the Act and find he is not a fit and proper person to hold a certificate.
51 The Tribunal is not persuaded that it is appropriate to also impose a fine in respect of breaches of the Act.
52 The Commissioner has sought an order for its costs.
53 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.
54 No details of the costs it seeks have been submitted or submissions made by the Commissioner as to why costs should in this instance be made in favour of the Commissioner.
55 The Tribunal is not persuaded that it is appropriate to depart from the Tribunal's general position that each party bear its own costs and declines to make an order as to costs.
Orders
For the above reasons, the Tribunal orders as follows:
1. The respondent has engaged in conduct that renders him unfit to be the holder of the Motor Vehicle Repairer's Certificate and pursuant to Sch 1 cl 1(a) of the Motor Vehicle Repairers Act 2003 (WA) is disqualified from holding or obtaining a Motor Vehicle Repairer's Certificate.
2. Pursuant to Sch 1 cl 3 of the Motor Vehicle Repairers Act 2003 (WA), the respondent is reprimanded.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS P LE MIERE, MEMBER
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